Home > Political Correctness > Taking the opportunity to speak freely while it is still legal

Taking the opportunity to speak freely while it is still legal

August 19th, 2011

Vulgarity alert: don’t read this post out loud in front of your kids or your grandmother.

The news of a popular teacher in Florida losing his job over Facebook comments could have a chilling effect on free speech.  As one of our commenters pointed out, the people of Florida do not agree that marriage is the union of any two persons.  They voted quite decisively to protect the definition of marriage as the
union of a man and a woman.  In other words, this teacher may lose his job for saying that he agrees with the legal definition of marriage in his state.  Go figure.

So, let me say a couple of things that may one day, become  illegal.  In my humble opinion:

1. Kids need a mother and a father.

2. Men and women are not interchangeable.

3. Anal sex is icky.

To everyone who agrees with these or similar sentiments, I strongly suggest you speak up while you still have the chance.

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  1. Sean
    August 20th, 2011 at 04:59 | #1

    I don’t think anyone is in danger of losing the right to speak his mind on issues, but there are circumstances where temperance is advised and necessary. We can’t have school teachers issuing edits that they don’t approve of black people or Jews or gays or other members of society, including potential members of his classroom.

    People expect clerics to air offensive viewpoints these days but going to church is voluntary. Going to school is not voluntary and all children have a right to feel safe at school, and not an adversary of their teacher. Let’s put the needs of children ahead of the needs of adults to express their disapproval of others, ok?

  2. Emily
    August 20th, 2011 at 06:51 | #2

    I’m guessing lesbians are then exempt from number 3? And straight people aren’t? (cuz straight people have anal sex. It’s true.)

  3. David Cox
    August 20th, 2011 at 07:00 | #3

    1. Not all couples marry to have children.

    2. “Icky” is not a argument presentable before a court of law, a legislative body, or any civil authority. Icky is not a standard by which citizen’s rights to the pursuit of happiness can be limited or granted.

    3. Many straight people enjoy anal sex but do not lose their right to marry.

    4. You’re an icky writer.

  4. August 20th, 2011 at 08:46 | #4

    Well it’s a good thing that anal sex is never ever ever performed by straight couples….

    Jennifer, your opinion is just that: your opinion. You will always have the freedom to express it in the public square, but you must understand the fundamental principles defined in freedom of speech. You are guaranteed the right to speak freely in the public square without government interference. That does not, however, guarantee freedom from social consequences of unfavorable speech.

    Yes, the police will be there to ensure your safety and that your ability to express your views are not blocked, but cannot and should not prevent anyone from expressing an opinion contrary to yours.

    This teacher, for example, did not partake in an exercise in freedom of speech. He posted on Facebook, which is a private forum with private terms of service. Still, he had a large number of friends enough to guarantee anything he posted on there would be subject to review. In posting what he did, he drew unnecessary attention to both himself and his school, ensuring that enough distraction would be raised that would potentially create a divide between some students, faculty, and parents – particularly any students he had who may be gay. He acted in a way that subtracted from his ability to do his job without distraction.

    When push comes to shove, his first amendment rights were not and still are not violated. He is as free today to express any and all opinions as he was a few weeks ago, whether in the public square or in a private, online forum.

    So, Jennifer, I suggest you drop the hyperbole and recognize the difference between the term “social consequence” and the term “legal punishment”. If at any point in time the government attempts to silence you or your ability to speak freely, you can rest knowing that virtually all LGBT men and women will fight for your ability to speak. In the meantime, however, you can be guaranteed that the words you say will ALWAYS be subject to review by others and if there is ever a chance, you may face some social consequences from your neighbors.

    I know, for example, that if I lived near you, my boyfriend and I (same gender) would not feel safe or comfortable because of what violence and hostility your words can inspire (not saying that you harbor either violence or hostility). If we were to have a neighborhood cookout, we most certainly would not invite you due to this. That is a minor consequence of your speech, but certainly not a violation of your rights to unabridged speech.

  5. August 20th, 2011 at 09:03 | #5

    Dr. Morse, I understand that other countries that lack a First Amendment have gone overboard in banning anti-gay speech, and I’ve written against that (I can provide a link on request).

    But do you have an argument for why we should believe the US will make such speech a criminal offense?

  6. Leland
    August 20th, 2011 at 10:58 | #6

    Emily :
    I’m guessing lesbians are then exempt from number 3? And straight people aren’t? (cuz straight people have anal sex. It’s true.)

    Wrong on both counts, Emily.

    Lesbians could have anal sex as easily as straight people or homosexuals do (if they wanted to) and…

    …it’s still “icky” (not to mention harmful) no matter who’s doing it.

    By the way, David:

    Is it not the case that as recently as our own lifetimes anal sex actually was a criminal offense under sodomy laws – regardless of the sexual ‘orientation’ of those doing it?

    In any case, it may soon become illegal to point out that anal sex is both deviant and harmful not because some depraved heterosexuals also do it, but rather because the sex radicals have already succeeded in making any behavior regularly engaged in by homosexuals socially sacred and above reproach – at least among the ‘politically correct’ set. So now they are determined to usurp the power of the law to force their amoral attitudes on all of us.

  7. Clark Mitchell
    August 20th, 2011 at 10:59 | #7

    This is one of the most sophomoric posts you’ve ever made. Why didn’t you and your cronies bring up the icky factor in the prop 8 trial? Would love to see what a court of law thinks about your “opinions”.

  8. Patrick Hogan
    August 20th, 2011 at 11:06 | #8

    This has nothing to do with first amendment rights. The first amendment guarantees that the government will not restrict one’s right to free speech without due process; it does not guarantee one’s right to say anything without consequence.

  9. Deb
    August 20th, 2011 at 11:32 | #9

    David Cox :
    3. Many straight people enjoy anal sex but do not lose their right to marry.

    Data, please.

    I can just as easily say “Many straight couples wouldn’t consider having anal sex,” and I bet my statement holds the statistical majority.

  10. Bob Barnes
    August 20th, 2011 at 13:21 | #10

    Let’s see

    1. There are 144 million orphans in the world, guess it’s their tough-luck that a good home can’t take them in because of the limitations set forth.

    2. Why should men and women be interchangeable?

    3. Icky? Some people think sushi is icky, some people think religion is icky, so now we have to make sure the subjectiveness of this only meets some people’s standards?

  11. Bob Barnes
    August 20th, 2011 at 16:03 | #11

    Deb :

    David Cox :
    3. Many straight people enjoy anal sex but do not lose their right to marry.

    Data, please.
    I can just as easily say “Many straight couples wouldn’t consider having anal sex,” and I bet my statement holds the statistical majority.

    Here you go:

    “For males, the proportion who have had anal sex with a female increases from 4.6 percent at age 15 to 34 percent at ages 22–24; for females, the proportion who have had anal sex with a male increases from 2.4 percent at age 15 to 32 percent at age 22–24.” One in three women admits to having had anal sex by age 24.

    http://www.cdc.gov/nchs/data/ad/ad362.pdf

    http://www.slate.com/id/2126643/

  12. Leo
    August 20th, 2011 at 18:20 | #12

    Re: orphans.

    The current world population is variously estimated, but let’s use a figure of about 6.8 billion. The latest estimate from UNICEF for the number of orphans in the world is 132 million, about two percent of the world’s population.

    But only 13 million have lost both their mother and their father, only two tenths of one percent of the world’s population, a number easily accommodated within a normal population by extended families. War or extreme poverty could produce an exception to this rule. The majority of orphans are living with a surviving parent, grandparent, or other family member. The vast majority of orphans (95%) are over the age of five. It would be generally desirable, of course, if all orphans could find a situation where they have a mother and a father. But sometimes that is not possible or desirable. The widow might not want to remarry for legitimate reasons, and that is her right. Her child should not be taken away from her except in the most exceptional circumstances.

    Babies are not a commodity, nor should they be treated as such. The right of the biological family and the rights of the extended family when the child is a double orphan should be respected when reasonably possible. When a single mother gives up a child, the reasonable wishes of the mother should likewise be respected. It would also seem sensible to place children in a situation that mirrors their genetic and cultural makeup, lest a child not carrying the hypothesized gay gene be placed in a situation contrary to his or her own genetic makeup and expectations for role models consistent with their identify.

    History has recorded numerous cases of colonized and conquered people where children were tragically and systematically removed from their extended families and culture and placed elsewhere in the name of progress and enlightenment, to the serious disadvantage of the colonized and conquered people. Consider the Middle East and the plight of orphans in a war-torn and impoverished land. The average Muslim family would be horrified if the children of their extended family were placed in a same sex “marriage” situation if other possibilities were at all available, particularly if this was being done to advance a political agenda or to redefine marriage.

  13. Leo
    August 20th, 2011 at 18:31 | #13

    Regarding speech codes on campuses, I recommend this website: http://thefire.org/ which includes rating for many schools.

  14. Deb
    August 21st, 2011 at 04:17 | #14

    Bob Barnes :
    Here you go:
    “For males, the proportion who have had anal sex with a female increases from 4.6 percent at age 15 to 34 percent at ages 22–24; for females, the proportion who have had anal sex with a male increases from 2.4 percent at age 15 to 32 percent at age 22–24.” One in three women admits to having had anal sex by age 24.
    http://www.cdc.gov/nchs/data/ad/ad362.pdf
    http://www.slate.com/id/2126643/

    I fond the ages in the CDC data very telling. Doubtful these 22-24 year olds are married. I can just imagine women agreeing to painful anal sex to seem edgy or to keep the young man. Also, how many opposite sex partners have had it only once (because the mantra of the day is “I’ll try anything once”), decided it was “icky” and never did it again? Once married and in a secure sexual relationship, how many women refuse anal sex in favor of pleasurable vaginal sex? How many men who are married decide that anal sex is not something they want with their wife? What is the data for married, straight couples? And why the sudden increase from 1990 to 2010? Did people just discover the “joys” of anal sex in the past 20 years, or, again, is our culture’s edgy, “I’ll try anything once” attitude in play? All these questions need to be answered before we declare that “many straight people ENJOY anal sex”. (emphasis mine)

  15. Emily
    August 21st, 2011 at 05:03 | #15

    “It would also seem sensible to place children in a situation that mirrors their genetic and cultural makeup, lest a child not carrying the hypothesized gay gene be placed in a situation contrary to his or her own genetic makeup and expectations for role models consistent with their identify.”

    So.. white babies go to white families, black babies go to black families? Hm. And if the unwed mother comes from a “cultural situation” that has one parent and a grandparent that raised them? Or aunts and uncles? Or older siblings, because the mother was strung out, and the father was in jail? These cultural things should then be emulated for the sake of the orphaned child?

    “Consider the Middle East and the plight of orphans in a war-torn and impoverished land.”

    Good thing this is America (where women can drive on their own and can walk around with their heads uncovered if by choice) and not the Middle East.

    If you don’t believe in The Gay Gene™ (hint: sexual orientation is not controlled by a single gene; neither are most complex attributes of animals), why are you so scared it would be “turned on” should a child end up with two parents of the same sex?

    Kids of same sex parents are tired of outsiders declaring their families “less than” and illegitimate. http://www.cnn.com/2009/LIVING/wayoflife/06/28/gayby/index.html Maybe try thinking of THOSE children too.

  16. Sean
    August 21st, 2011 at 05:34 | #16

    “The average Muslim family would be horrified if the children of their extended family were placed in a same sex “marriage” situation if other possibilities were at all available”

    Or with a Christian family, I assume. Or with Jews. Oh well, I guess we have to worry about the needs of the child and not the needs of the extended family, if there’s a conflict.

  17. August 21st, 2011 at 05:59 | #17

    @Bob Barnes So where do the statistics come from? What sort of people would be interviewed for these questions and what sort would answer them? Only a very, very small percentage of the population. So to extrapolate responses from a small percentage of exhibitionists and apply that across population at large reminds me of Mark Twain’s quote -”There are lies, damned lies and statistics.”

    Nevertheless, even if 100% of heterosexual couples participated in anal sex, that wouldn’t make it right any more than if 100% of heterosexual men raped women. It is an abuse of the body.

    “Planting the seed of human life in the passage designed for the expulsion of waste not only causes disease, but also exerts a destructive force upon the individual soul and on the value of all human life.”

  18. Regan DuCasse
    August 21st, 2011 at 10:59 | #18

    A teacher is in a position of great influence on a captive classroom. He can and DID express his beliefs. That doesn’t mean it doesn’t have consequences that should only apply to gay people and not himself.
    There are children who torment one another over anti gay sentiments. Children as young as eleven have committed suicide and a gay child has a particular vulnerability over other bullied children because the potential for a teacher like this or parental abuse over it is acute. A gay child has no safe haven of support with this teacher. Who might well, out of spite, out that child to their anti gay parents.
    So the risks of tragedy from his views and actions that might follow make him a LIABILITY.
    And no school is obligated to retain a teacher who is a liability to any of their students.

    And it’s intellectual dishonesty and moral cowardice to diminish anti gay sentiment as a ‘disagreement’ or matter of mere opinion.
    Gays and lesbians are subjected to serious human and civil rights abuses and systemic discrimination which have been destructive and threatening to their self reliance and well being.
    Such speech, the libel and assertions of stereotypes ARE a liability to gay people and society at large. How many young people are incarcerated and how many are in their graves or sustained expensive injuries that cost them their potential livelihoods or that of their parents?
    How much in costs of incarceration, court trials, lawyer fees and disrupted educational advancement?
    When you look at it from other than the hetero supremacist model, the liability truly adds up.
    So yes, this teacher IS a detriment and liability to young people. So he can fire away all he wants freely. It IS his right.
    But that doesn’t mean he’s got a right to be a problem for others because of it.

  19. Ken
    August 21st, 2011 at 18:47 | #19

    @Glenn E. Chatfield
    So any straight couple that engages in anal sex should forfeit their right to marry because some people consider what they do with their own bodies in private “icky”? Is that your position?

  20. John Noe
    August 21st, 2011 at 18:52 | #20

    Good point Jennifer: Did anyone see the ABC TV show Q&A? In the show the homosexual activists are now demanding that anyone who believes that children need a mother and a father is guilty of HOMOPHOBIA. In other words stating that children need a mother and a father is considered hate speech and is a HOMOPHOBIC remark.

  21. John Noe
    August 21st, 2011 at 18:58 | #21

    Jennifer in point three I would switch the word icky with unhealthy and deadly. Anal sex is extremely unhealthy and is deadly. This is how you get sexually transmitted disease. AIDS is caused by anal sex. Only an idiot is stupid enough to beleive that a penis belongs in the rectum. When a hard penis continually jams the soft tissue of the anus it causes a tear in the sensitive skin. When semen enters the bloodstream it causes deadly disease.

    If anyone has time go to YouTube and watch the video ” Dangers of the Gay Lifestyle” then go to the CDC website that has the information on this.

  22. Jonesey
    August 21st, 2011 at 19:10 | #22

    I have a newsflash for NOM, The Ruth Institute, and all the other “anal sex is icky” people out there. A substantial percentage of gay men do not enjoy or participate in anal sex. About 50% of the 40-something gay men in my immediate social circle do not have anal sex. Not that I care if anyone gay or straight has anal sex… If both parties consent to it, it’s none of my business. I’m just saying, all those anti-gay people out there who define all gay men only as people who have anal sex are wrong. I don’t care what kind of sex married straight couples have, so why do they care what I do?

  23. Paul H
    August 21st, 2011 at 20:00 | #23

    Emily :
    I’m guessing lesbians are then exempt from number 3? And straight people aren’t? (cuz straight people have anal sex. It’s true.)

    I’m not the one who made statement #3, but I agree with it. (That doesn’t mean that I think it’s a valid argument either for or against same-sex marriage or anti-gay discrimination or anything else — I don’t think that it is.)

    In reply to your questions, I would say yes, and yes.

  24. Leo
    August 21st, 2011 at 20:35 | #24

    @Sean
    You rather missed the point that there are plenty of suitable families and settings available. Plenty of suitable Muslim families for Muslim children. There is no need to take the children from their natural setting to use them as political pawns, and children should not be used as guinea pigs in some social experiment. The first gay adoption in New Jersey didn’t work out so well when both adoptive parents died of AIDS. On the other hand, if you can find a double orphan carrying the gay gene, then that would be a different story.

  25. bman
    August 21st, 2011 at 22:12 | #25

    @Jonesey

    Jonesey: I don’t care what kind of sex married straight couples have, so why do they care what I do?

    The issue is not what you do in private, but whether a public law should officially endorse what you do, thereby making “gay morality” the official morality of government and imposing your morality on children through the public schools.

  26. Jill
    August 22nd, 2011 at 07:32 | #26

    @Deb

    according to the CCD, 36% of heterosexuals are having anal sex.

    Which means MILLIONS more straight people do it than gay people.

    When can we expect the referendum on heterosexual rights, since more of them are having sex anally?

    How silly is this? Do you really think you can limit people’s constitutional freedoms due to them having anal sex???? Are you for real???

  27. August 22nd, 2011 at 07:59 | #27

    @Regan DuCasse The opinions were NOT expressed in the classroom. To say a teacher has no right to express opinions outside of the classroom is to interfere with his life and liberty.

  28. August 22nd, 2011 at 08:00 | #28

    @Ken Sexual behavior between heterosexuals, even that which harms them, does not alter the fact that their union is still opposite-sex. The sexual practices do not define the marriage – marriage is defined by opposite-sex partners.

  29. August 22nd, 2011 at 08:02 | #29

    @Jonesey And where to you get these statistics? Take a survey of a small population and then extrapolate the data nationally? That is worthless.

  30. Anne
    August 22nd, 2011 at 09:06 | #30

    @Emily

    “So.. white babies go to white families, black babies go to black families?”
    Why not? Culture, Race, Religion…all beautiful distinctions, worthy of regard.

    “Kids of same sex parents are tired of outsiders declaring their families “less than” and illegitimate.
    try thinking of THOSE children too.”

    Perhaps YOU could start thinking of them and stop deliberately displacing them from their natural environment.

  31. nerdygirl
    August 22nd, 2011 at 10:28 | #31

    @Deb
    My married friend enjoys anal sex with her husband. Different strokes for different folks.

  32. Deb
    August 22nd, 2011 at 10:39 | #32

    Jill :
    @Deb
    according to the CCD, 36% of heterosexuals are having anal sex.
    Which means MILLIONS more straight people do it than gay people.
    When can we expect the referendum on heterosexual rights, since more of them are having sex anally?
    How silly is this? Do you really think you can limit people’s constitutional freedoms due to them having anal sex???? Are you for real???

    When did I even talk about rights, the constitution, and freedom in my post?

    I was remarking about the “many straight people ENJOY anal sex.” (emphasis mine) comment isn’t data supported. Your emotional rant still hasn’t proved that many straight couples ENJOY anal sex. You gave me the same data as Bob Barnes: that 36% of straight people have HAD anal sex. Trying anal sex once as a heterosexual couple is different than choosing anal sex statistically more often than vaginal sex. Show me the data with percentage of times heterosexual couples engage in anal sex versus vaginal sex and then we can talk.

    Until then, calm down and actually READ posts before flying off the handle. Sheesh.

  33. Deb
    August 22nd, 2011 at 12:16 | #33

    @nerdygirl

    Before we jump to the “many straight people ENJOY anal sex” comment (because you know someone who says they do), data that shows with what percentage heterosexual couples engage in anal sex versus vaginal sex would be needed. Thus far, all that has been presented is 30% of women age 22-40 and 40% of men age 22-40 have HAD anal sex with an opposite sex partner. Is that one time? Is it more often than they choose vaginal sex? Come on, people, this is beginning statistical analysis.

    Your married friend may be in the minority of women who enjoys anal sex. I don’t know because I don’t have the data. But, I could come back with: my husband and I have never engaged in anal sex. So now we just have two pieces of data with opposite results.

    By the way, why did your friend feel the need to tell you this in the first place? Does your friend, or her husband, frequent pornography with images of anal sex and therefore desire something that is biologically not built for enjoyment in the way the vagina is?

  34. Nigel Desmonds
    August 22nd, 2011 at 12:18 | #34

    I’m amazed how interested strait peoplle seem to be in anal sex.
    Anal sex does not cause AIDS. HIV causes AIDS .Anal sex fascilitates the transmision of HIV but only HIV causes AIDS.
    As to the distinction between practicing anal sex and enjoying it , I find this most bizzare.
    The truth is many people indulge in anal sex.My patients tell me that most of the pleasure is derived by the male but that the avoidance of pregnancy is a major factor for the female. This seems to be particularly significant for Catholics wishing to avoid contraception.
    As stated above , many homosexuals never induldge in anal sex and given the disparity in
    numbers , anal sex is a predominantly hetrosexual activity.(60% of 2 to 3% of the population vs. 25 to 30% of 97% of the population)

  35. Heidi
    August 22nd, 2011 at 12:30 | #35

    1. Kids do not NEED a mother and a father. My thriving niece that my partner and I are rasing is living proof that children need love and security and that the sex and/or gender of their parents is irrelevant. My own experiences as a child with an physically and emotionally abusive religious fanatic father evidence the fact that my siblings and I most certainly did not need our father in our lives. In fact, we were much better off once my parents finally divorced!

    2. What does this even mean? Interchangeable for what purpose? I can agree that a woman cannot contribute sperm and a man cannot contribute an egg to the process of procreation, but beyond that…what exactly are you talking about? And what in the world does it have to do with marriage? Or are you again conflating procreation with marriage?

    3. If you don’t like it, don’t do it. There, see how easy that is? But again, what in the world does that have to do with marriage?

    Finally, as has been noted above, being free from government punishment for speech (guaranteed by the First Amendment) does not equate to social acceptance of that speech. I wouldn’t want my child subjected to the racist or sexist views of a teacher, any more than I want my child subjected to the hateful comments made by this teacher. Comparing my family composition to a “cesspool” and talking about how the thought of same-sex marriage makes him want to “throw up” show that this man has no qualms about alienating gay students or those raised by same-sex parents. Perhaps he would be happier teaching at a religious school.

  36. Nigel Desmonds
    August 22nd, 2011 at 12:38 | #36

    Post No. 6.
    As a gay man I admit considerable ignorance of “Lady Parts” but anal sex among lesbians? Perhaps I just need some re education.

  37. Sean
    August 22nd, 2011 at 15:14 | #37

    “You rather missed the point that there are plenty of suitable families and settings available. Plenty of suitable Muslim families for Muslim children. There is no need to take the children from their natural setting to use them as political pawns, and children should not be used as guinea pigs in some social experiment. The first gay adoption in New Jersey didn’t work out so well when both adoptive parents died of AIDS. On the other hand, if you can find a double orphan carrying the gay gene, then that would be a different story.”

    But there aren’t plenty of “suitable” families. That’s why there are so many children up for adoption: straight people keep producing children they won’t take care of. And other straight families don’t want to take care of them.

    But you are willing to use children as guinea pigs with regards to marriage, and force the children of same-sex couples to be raised outside of marriage. Curious.

    Let’s put the needs of children first, ok? Let’s leave the judging to God, ok?

  38. August 22nd, 2011 at 15:40 | #38

    “2. Men and women are not interchangeable.”

    What does it even mean? Interchangeable means that you can take out one and put in the other and it won’t make a difference. There are many areas where men and women are interchangeable, like as bank tellers, but, to go to the other extreme across the huge middle where there is a range of differences from subtle to large, there are also some areas where the difference is absolute. For instance, in reproduction, you can’t interchange a male for a female, both are necessary to produce a viable embryo. In order to make men and women interchangeable for procreation, we have to give up the right to use our unmodified gametes and truly reproduce, because same-sex couples require modifying the gametes and creating a person that is not really the offspring of two people at all, but is the manufactured product of a lab, without equal human origins. It’d be unethical and expensive and should be prohibited.

  39. Sean
    August 22nd, 2011 at 15:59 | #39

    “Show me the data with percentage of times heterosexual couples engage in anal sex versus vaginal sex and then we can talk.”

    What difference does it make? Why not let consenting adults practice their sex drives as they see fit? Why do you think you even have a say in the matter? I’ll never understand the sex police, and why they aren’t embarrassed that they think about what other people do sexually!

  40. Deb
    August 22nd, 2011 at 17:08 | #40

    @Nigel Desmonds

    Are you suggesting that the Catholics are engaging in anal sex (which the Church teaches is a mortal sin) as a contraceptive act because they avoid contraceptives (which the Church also teaches is a mortal sin)? Not believing you here, sorry. I think that most Catholic are opting for the mortal sin of birth control pills/sterilization over anal sex.

  41. Deb
    August 22nd, 2011 at 17:11 | #41

    @Sean

    It makes a whole lot of difference as to their soul.

    All I have asked for was more data. Instead of more data I get accused of things that I never said.

    If that’s all you got, Sean, Jill, and Nigel, have at it.

  42. nerdygirl
    August 22nd, 2011 at 17:23 | #42

    @Deb
    Oh sure, anal sex would be in the minority of sex acts that heterosexual married couples partake in. I just think it’s silly the reaction it’s getting. I mean, really, who cares. I threw that particular example out there because you were acting as though no woman ever liked it. I wouldn’t claim that everywoman loves or would love anal sex, and you should know better then to claim that no woman enjoys it.

    And really, you can totally say anal sex is icky. You don’t have to like anal sex. Making it a big thing like your subverting the system or rebel forces for saying it though is silly.

    “By the way, why did your friend feel the need to tell you this in the first place? Does your friend, or her husband, frequent pornography with images of anal sex and therefore desire something that is biologically not built for enjoyment in the way the vagina is?”

    Actually, it came up in conversation because I made some sort of comment of not being interested in it, and that it would hurt. She replied that she tried it and liked it, but that it was something one had to be in the mood for. I don’t know her husbands porn habits, her’s are fairly tame but i don’t know specifics. As far as the whole not built for enjoyment thing, well, the vagina isn’t a one trick pony, neither is the anus.

  43. bman
    August 22nd, 2011 at 19:14 | #43

    @Sean : That’s why there are so many children up for adoption: straight people keep producing children they won’t take care of. And other straight families don’t want to take care of them. But you are willing to use children as guinea pigs with regards to marriage, and force the children of same-sex couples to be raised outside of marriage.

    This is a very shortsighted argument to me.

    It’s an established principle that a society will look to its laws for what is moral, whether those laws are genuinely moral or not.

    We need leaders who will create laws that are genuinely moral. That way, society would follow the genuine morality that law set forth.

    What you propose is a bad law that would endorse a counterfeit morality and lead society further astray. Its the same kind of negligent regard for morality at law that produced high rates of divorce, abortion, and all the irresponsible sex that got us into this mess in the first place.

    The solution to “straight people producing children they won’t take care of” is not another law that promotes negligent regard for morality.

    The way to put the needs of children first is to return society to a genuine morality so that sex between a man and woman is honorable only within marriage once again. This may require some kind of penalty at law to discourage unmarried sex, as well.

    A same sex marriage law is not the way to solve the problem because its actually the next logical step on the path of casual sex, casual divorce, and casual abortion that brought us to where we are now.

    To go forward on that path will only lead to a worsening of morality in society with even more children not having the security of married parents than we have now.

    A same sex marriage law would hurt children by creating a society around all children that is even less sexually moral than today’s society.

    Rather than taking the next logical step on that dark path, the next reasonable step to take next is to turn around, reverse direction entirely and restore genuine morality.

    That is the way to put the needs of children first.

    If we truly want America to go forward we must turn back; back to a moral society based on Christian principles.

  44. Leo
    August 22nd, 2011 at 20:33 | #44

    @Sean

    “But there aren’t plenty of “suitable” families.”

    Evidence? We are talking about placing only two tenths of one percent of the population. During the Depression, World War II, and the post-World War II baby boom, orphans and foundlings may have outnumbered the families seeking to adopt. Couples now literally go to the ends of the earth to find orphans. In recent years the number of adoptable children has fallen because of widespread birth control, legalized abortion, and a reduced stigma on unwed mothers who keep their children. Demand, however, has grown rapidly over this period, in part because more people now wait until they are older before they marry, and the incidence of sterility has risen. The result is a highly-publicized shortage of adoptable children. A significant barrier to adoption is its high cost, averaging perhaps $75,000. The problem is not a shortage of emotionally suitable couples, but high economic barriers. Reducing the cost would massively increase the pool of available parents. Of course, the most economical solution is adoption within the child’s home country. Given the costs of international adoption, the most cost-effective solution is to help the children where they are.

    “Let’s put the needs of children first, ok?”

    Who determines what the needs of the children are and what is in their best interests? Would you take children away from their single parents? From their extended families? 95% of orphans are only half orphans living with single parents (about whom Sean seems to care little) and their extended families. My point is that the wishes of the family should be paramount, except in extreme cases. And where the whole family has been wiped out, the wishes of the culture from which the child came and the child’s genetic make-up should be acknowledged.

    Same sex couples with children chose to raise them outside of the existing marriage structures, and no one is taking their children away. It was their grand experiment, not mine. And how did that grand experiment begin? They did not produce those children from within their unions, but got them either from heterosexual couples or from a heterosexual partner who is now excluded from their partnership. What about the rights of the excluded parents?

    Likewise, single parents have the right to raise their children without being married. That is their choice. The state does not have the right to take their children away. Nor should the state forcibly take children from, say, religiously-based orphanages, which are historically important charitable institutions providing for orphans. But that might be the next step.

  45. Anne
    August 22nd, 2011 at 20:54 | #45

    @Heidi

    “Kids do not NEED a mother and a father.”

    Perhaps. But that doesn’t mean they don’t deserve to have them.

  46. Patrick Hogan
    August 23rd, 2011 at 00:03 | #46

    @John Noe

    Seriously?

    John Noe :
    … Anal sex is extremely unhealthy and is deadly. This is how you get sexually transmitted disease. AIDS is caused by anal sex. … When semen enters the bloodstream it causes deadly disease.

    I’m sure (?) that you actually meant to say that unprotected (or improperly protected) anal sex where at least one participant is carrying one or more STDs facilitates the spread of STDs…What you said was patently, ridiculously false, and — if the phrasing was intentional — was a sickeningly dishonest attempt to vilify gay men.

    Of course, when you phrase it accurately (as I did above), it doesn’t sound nearly so shocking or condemnatory. But that’s the price one must pay for honesty…

  47. Anne
    August 23rd, 2011 at 05:13 | #47

    @Leo

    ““Let’s put the needs of children first, ok?”

    Who determines what the needs of the children are and what is in their best interests?”

    Rob Tisiani does, in a rather disturbing video on his website, which he posted the address to on another thread, in a video titled: “Protect the Children (and mean it)”.

    He opines that because the victims of male pedophiles are usually young boys “who have no body hair”, that the men who abuse them are actually heterosexuals in pursuit of women but substitute young boys who are more easily accessible. He uses his premise to then lay claim to the idea that children are actually safer being raised among the homosexual community than their natural habitat of heterosexuality. He speaks with a tone and inflection which is masterfully deceptive and a frightening indication of the depths of denial that the homosexual community will go to in justifying their behaviour.

    Leo, Glenn, Deb…..I’d really love to hear your thoughts on this.

    Rob you are still in my prayers.

    http://wakingupnow.com/blog/on-purpose

    The direct blog link is actually an article on “purpose” which appears to claim that all purpose is subjective. ??? The “Protect the Children” video link is to the right side of the article.

  48. Ken
    August 23rd, 2011 at 06:54 | #48

    Glenn E. Chatfield :
    @Ken Sexual behavior between heterosexuals, even that which harms them, does not alter the fact that their union is still opposite-sex. The sexual practices do not define the marriage – marriage is defined by opposite-sex partners.

    We always end up back in the same place, don’t we? The circular logic of the anti-gay agenda is always amusing. You tried to claim that anal sex is harmful and unhealthy and use that as a reason for why same-sex couples should not be allowed to marry. Then you were reminded than heterosexuals also engage in the same practice. Your response was essentially “yeah, but they’re not gay”. We all know that arguments against marriage-equality are based simply on a religious-based animus towards gays and lesbians. But knowing that that’s not enough to support an argument about how our civil laws should be written, anti-gay activists try to come up with hundreds of attempts at secular, logical, rational, legal arguments. But none of them holds water. And when you peel back a couple layers to reveal the hypocrisy or the major flaw in the attempted logic, you quickly arrive back at the starting point: being gay is wrong.

  49. Leo
    August 23rd, 2011 at 07:03 | #49

    Sean congers up a picture of hoards of straights abandoning their children (“straight people keep producing children they won’t take care of”). I am beginning to think he might harbor animus against straights when he throws out that charge. Statistics are hard to come by, as child abandonment is classified as a crime in many jurisdictions. But there are, unfortunately, cases of child abandonment. How many cases? In the UK in recent years the number was about fifty. Not fifty thousand. Fifty. This is a serious problem for those fifty, but not serious enough to overwhelm the heterosexual population of the UK or to provide much support for a general smear campaign against straights.

  50. Heidi
    August 23rd, 2011 at 10:07 | #50

    @Anne
    Then take that up with the parents that neglect and/or abuse their children, the fathers who walk away from their children, the parents who divorce and fight over their children, etc. I didn’t deprive my niece of her biological parents–they did that themselves. Children deserve love and security–the sex or gender of their parents is irrelevant. I have the living proof of what I claim–my two beautiful, intelligent, content and happy children. What do you have except for circular reasoning?

  51. bman
    August 23rd, 2011 at 11:03 | #51

    Ken: You tried to claim that anal sex is harmful and unhealthy and use that as a reason for why same-sex couples should not be allowed to marry. Then you were reminded than heterosexuals also engage in the same practice.

    The public recognition of marriage conveys the endorsement and approval by society of a couple’s procreative sexual relationship.

    Maladaptive sexual behaviors by a married couple do not have implicit societal approval.

    However, that would change if same sex marriage was made law because it would imply societal approval of men having sex with men, a maladaptive sexual behavior that society does not and should never approve.

  52. Anne
    August 23rd, 2011 at 11:08 | #52

    @Heidi
    “I didn’t deprive my niece of her biological parents–they did that themselves. I have the living proof of what I claim–my two beautiful, intelligent, content and happy children. What do you have except for circular reasoning?”

    What adjective would you use to describe your own “reasoning” that because you didn’t personally deny your neice her parents, that homosexuals who manufacture children for themselves aren’t doing it?

    Your neice’s situation would exist whether or not you and your partner were together. Homosexual couples who manufacture children act to deliberately detatch children from their parents. They are not the same concept and your situation doesn’t in any way validate deliberately severing parental bonds.

    “Children deserve love and security–the sex or gender of their parents is irrelevant.”

    Bonds with their parents provide children the security you admit they deserve. The bonding is significantly enhanced by the biological connection. You can say it is irrelevant all you want. That won’t ever make it true.

    “Then take that up with the parents that neglect and/or abuse their children, the fathers who walk away from their children, the parents who divorce and fight over their children, etc.”

    Agian, what is the appropriate adjective for the “reasoning” that because some heterosexual parents behave badly, homosexual couples should manufacture children?

  53. August 23rd, 2011 at 11:34 | #53

    Anne, I’m still reading this blog. I don’t want to use my time in debate here that turns fruitless, but since you’ve accused me of misconduct, I’ll offer this one post:

    “He opines that because the victims of male pedophiles are usually young boys “who have no body hair”, that the men who abuse them are actually heterosexuals in pursuit of women but substitute young boys who are more easily accessible.”

    No, sorry, that’s completely wrong. My “opining” is based on interviews with predators. These predators stated themselves that the traits they found attractive in young boys were the lack of body hair and smooth skin — not traits associated with attraction to adult men. I did not say the predators were pursuing women: they were pursuing children. I did not say the predators chose boys over WOMEN because boys are more accessible — they chose boys over GIRLS because boy are accessible.

    This is all in the video. It’s ironic that you can misread it so completely and then accuse me of being in the depths of denial. You should watch again.

    Also, if you’re going to accuse my work of being “masterfully deceptive,” then common decency suggests you document the deception instead of just flinging an accusation.

    That’s it. I’m not going to go into a long debate on this. I simply could not let your accusation stand. I appreciate your prayers for me, Anne, and I’ll pray for you, too.

  54. Ken
    August 23rd, 2011 at 12:14 | #54

    @bman
    Sorry bman, you’re wrong. Marriage licenses are not granted based on the anticipated sexual activity of a couple. And their not based on whether or not the couple will reproduce. If they were, older women and infertile men and women of all ages would be prohibited from marriage. Marriage legally binds two consenting adults together who seek to form a family (which may or may not include children). Their sexual practices are their own private business and not any concern of the state. Any they’re certainly not any concern of yours.

  55. Anne
    August 23rd, 2011 at 13:15 | #55

    @Rob Tisinai
    “I did not say the predators were pursuing women: they were pursuing children. I did not say the predators chose boys over WOMEN because boys are more accessible — they chose boys over GIRLS because boy are accessible.”

    Wow Rob. You say that as if the distinction is meaningful in light of your stated intent which was to disassociate the deviance of male on male pedophelia with homosexual mentality and consider the activity a heterosexual one. Are you sure they aren’t really just “bi-sexual”?

    I only know what I read and hear about homosexual relationships, but don’t many of them have a partner who is more feminine than the other? By the arguments of many (if not most) of the homophiles here, femininity exists in both sexes. Your convenient use of the attraction to femininity in this particular instance appears random, self-serving and “deceptive”.

    Thanks for the prayers.

  56. Sean
    August 23rd, 2011 at 16:19 | #56

    @Deb

    “All I have asked for was more data. Instead of more data I get accused of things that I never said.”

    And all I said was, what difference do data make? Unless you’re conducting research, what difference does it make who has a higher percentage of anal sex, straight couples or gay couples?

    @bman

    “It’s an established principle that a society will look to its laws for what is moral, whether those laws are genuinely moral or not.”

    Ok. Maybe that points out the fact that laws aren’t made around someone’s perception of morality, but rather, around what protects individuals from government and each other.

    “We need leaders who will create laws that are genuinely moral.”

    Fair enough, but who gets to decide what’s moral? I think it’s immoral to deny children the right to have married parents, and the security and social status that comes with it. You think children are acceptable collateral damage in your desire to see gay people not be allowed to get married.

    “What you propose is a bad law that would endorse a counterfeit morality and lead society further astray.”

    I propose no such thing. What you propose is a law that reinforces your personal prejudices, and puts government on your side, no matter who it harms.

    @Leo
    “Who determines what the needs of the children are and what is in their best interests?”

    Well, hopefully decent, moral, fair-minded people who aren’t intent on enshrining into laws their personal prejudices, regardless of how it negatively impacts children.

    “95% of orphans are only half orphans living with single parents (about whom Sean seems to care little)”

    Why on earth would you make such an accusation? Did that feel good or something? Single parents are free to get married and I’d encourage them to do so. They are not forbidden from marrying, as gay parents are. There is no need to go to bat for single parents; they are not being denied any marriage rights.

    “Same sex couples with children chose to raise them outside of the existing marriage structures, and no one is taking their children away.”

    And that’s why we need to change the existing marriage structures, in part. They have children, which no one except fringe person’s like Maggie Gallagher and Rick Santorum objects to, but we won’t let them marry and give these children full legal and social protections. Yes, it’s crazy, and I welcome an explanation for why we have this bizarre dichotomy.

    “They did not produce those children from within their unions, but got them either from heterosexual couples or from a heterosexual partner who is now excluded from their partnership. What about the rights of the excluded parents?”

    Many straight couples use a third party to obtain or create a baby. It’s not uncommon. No biological parent is excluded from his or her child’s life unless s/he wants to be. Please stop implying that gay couples “steal” other people’s children. They don’t. That’s highly illegal.

  57. Sean
    August 23rd, 2011 at 16:22 | #57

    “Sean congers up a picture of hoards of straights abandoning their children (“straight people keep producing children they won’t take care of”).”

    I read that there are 144 millions child orphans in the world. How many orphaned children, abandoned or who lost their parents and no one else in their family wants them, have to be created before we can make the claim that there are a lot of straight people producing humans they can’t or won’t take care of? Can you imagine what the number would be without abortion and birth control?

  58. Sean
    August 23rd, 2011 at 17:01 | #58

    U.S. District Judge Joseph L. Tauro — ruling Section 3 of the “Defense of Marriage Act” unconstitutional — said it all:

    “Irrational prejudice plainly never constitutes a legitimate government interest.”

    So, we don’t make laws based on one group’s dislike of another group.

  59. Deb
    August 23rd, 2011 at 19:00 | #59

    Ken :
    You tried to claim that anal sex is harmful and unhealthy and use that as a reason for why same-sex couples should not be allowed to marry. Then you were reminded than heterosexuals also engage in the same practice.

    This quote shows the exact reason why more data on the sexual choices (anal versus vaginal) of heterosexual couples is needed. Ken, here, is trying to legitimize anal sex by throwing out “heterosexuals also engage in the same practice ” which is along the lines of “many straight people ENJOY anal sex”. All we know is the CDC data which shows the percentage of heterosexuals who have HAD it. There has been no data provided to show with what frequency, if any, heterosexual couples CHOOSE anal sex over vaginal sex. Until then, stop using heterosexual couples ENJOY anal sex as an argument for homosexual “marriage”.

  60. Deb
    August 23rd, 2011 at 19:11 | #60

    @Anne

    Good point, Anne. We have been reminded, repeatedly, that gender varies despite the genitalia given a person. By that logic, a predator could be choosing a boy over a girl thinking that the male genitalia of the boy was masking the girl inside or vice versa.

    His argument is, at best, self-serving.

  61. Patrick Hogan
    August 23rd, 2011 at 20:39 | #61

    @bman

    bman :
    The public recognition of marriage conveys the endorsement and approval by society of a couple’s procreative sexual relationship.
    Maladaptive sexual behaviors by a married couple do not have implicit societal approval.

    “Maladaptive sexual behaviors” have as much implicit societal approval as any other sexual behaviors between married couples. The constitutional right to privacy, as recognized by SCOTUS, does not limit itself to the right to have procreative sex within marriage; it explicitly recognizes the rights (particularly of married couples) to engage in particularly non-procreative sex (see Griswold V. Connecticut, in which SCOTUS upheld the right of married couples to use artificial contraception).

    However, that would change if same sex marriage was made law because it would imply societal approval of men having sex with men, a maladaptive sexual behavior that society does not and should never approve.

    The only independent quality for sexual behavior to be “maladaptive” that you have provided is that it be non-procreative. The other quality — that it be between members of the same sex — is either entirely unsupported or dependent upon the first quality (that it not be procreative). Given that SCOTUS has upheld the right of married couples to participate in entirely non-procreative sex, and the fact that you have not provided any argument other than your own moral disapprobation that would separate non-procreative heterosexual sex from non-procreative homosexual sex, there would seem to be no reason to suppose than anything about the “implicit societal approval” of “maladaptive sexual behavior” would be changed by allowing same sex couples to marry.

    @Anne

    Anne :
    Wow Rob. You say that as if the distinction is meaningful in light of your stated intent which was to disassociate the deviance of male on male pedophelia with homosexual mentality and consider the activity a heterosexual one. Are you sure they aren’t really just “bi-sexual”?

    The distinction is central to any discussion of pedophilia.

    Adults who sexually abuse children typically fall into one of two categories: true pedophiles (people who are exclusively attracted to children, who show no interest in adults of either sex), or sexually regressed adults (who experience a temporary or transient attraction toward a specific child or children during a time of some kind of extreme personal stress but are generally attracted to other adults).

    True pedophiles cannot rightly be classified as gay or straight (or, to use more clinically precise terms, as androphiles or guinophiles — attracted to adult males or attracted to adult females, respectively).

    Sexually fixated adults, however, can rightly be classified as androphiles or guinophiles — but the gender of the abused child is frequently incongruent with the adult sexual attraction. For guinophilic men (that is, men who are attracted to adult women) who abuse boys, the abusers typically report being most attracted to the feminine characteristics of the young child (slight build, lack of body hair, lack of male secondary sex characteristics).

    Since Rob was apparently referring interviews with such men (who make up the overwhelming majority of non-pedophilic sexual abusers of children — women sexually abusing children is uncommon, and I have not seen any report of an androphilic man abusing a pre-pubescent child), the distinction is incredibly meaningful.

    And, yes, there is strong evidence that such men are not simply bisexual; a variety of techniques used to measure sexual attraction (from rather imprecise phallometric techniques to extremely precise MRI scans of brain activity) have confirmed the self-reported sexual orientations of a sampling of abusers.

    I only know what I read and hear about homosexual relationships, but don’t many of them have a partner who is more feminine than the other?

    First: I would recommend that you get to know at least one gay couple before slapping condemnations on all of us. It helps to have some perspective — for instance, I know many opposite sex couples, some of whom believe that same sex couples should not be allowed to marry.

    More importantly, though: for any two people, one is always (even if imperceptibly) “more feminine” than the other, so I will assume that you mean that most gay couples are made up of a typically masculine man and an atypically feminine man. That can be true, but has not generally been my experience — most gay men (again, in my experience) are most attracted to particularly masculine traits. Even when one partner is atypically feminine, it tends to be the less obvious masculine traits to which the other is attracted.

    Many gay men (according to this compilation of answers to an admittedly unscientific survey) seem to be attracted to men who exhibit particular masculine characteristics similar to their own. As noted, this is based on over-the-internet self-reporting and, as such, is only slightly more scientifically rigorous than guessing, but it falls much more in line with my experiences as a gay man than traditional stereotypes.

    By the arguments of many (if not most) of the homophiles here, femininity exists in both sexes. Your convenient use of the attraction to femininity in this particular instance appears random, self-serving and “deceptive”.

    Of course femininity — and masculinity — exist in both sexes, though the degree to which each is expressed by any given individual varies widely. Much of that is due to biology — both genetics and, more particularly, adolescent and adult hormone levels. But Rob’s “convenient use of the attraction to femininity” is based on the self-reported attractions of the child abusers in the studies to which he refers — it is not “random, self-serving” or “‘deceptive’”.

  62. August 23rd, 2011 at 20:48 | #62

    Anne, you say that you only know what you read and hear about homosexual relationships. Is this true? You don’t actually know any same-sex couples your self, but rather base your judgements on what you read and hear? Where do you read and hear what you use to determine or judgement of same-sex couples? Here on teh Ruth Blog, where people agree that same-sex couples are quagmired in a cesspool of sin? Doesn’t that seem like an echo-chamber to you?

    Maybe you would best serve the truth of which you speak so highly by going out and befriending a few real same-sex couples, instead of just basing your reality on what you merly read and hear.

  63. Heidi
    August 24th, 2011 at 07:40 | #63

    @Anne
    “Homosexual couples who manufacture children act to deliberately detatch children from their parents. They are not the same concept and your situation doesn’t in any way validate deliberately severing parental bonds.”

    The mistake that you make in the above comment is the assumption that one who donates sperm or eggs is a parent. No. The person who actually parents is the parent. So, if one partner in a lesbian couple is artificially inseminated, she has not “deliberately detached” the resulting child from his or her parents. The sperm donor is not a parent; he is merely a sperm donor. And he voluntarily and knowingly agrees to surrender any possible legal tie to the resulting child(ren). The fact that the child’s parents are of the same sex is irrelevant. Their situation is no different from the heterosexual couple that needs ART to have a child. One of the partners may be unable to contribute sperm or eggs to the child that is to be created, and the couple agrees to the assistance of a third person. The child that results belongs to the couple, not to the donor of genetic material or the surrogate. There is no “parental bond” that exists between a child created by ART and the sperm or egg donor that provided the genetic material to help create the child. A “parental bond” exists only between a child and the parents who raise that child.

    I can personally vouch for this. My sister, while in active recovery for substance abuse, lived with my partner and I about 3 months after Anna was born. At this point, we still expected her to step up to the plate and be Anna’s mother. It didn’t take long for us to see that she was absolutely incapable of bonding with her own child. She didn’t want to hold her or play with her. She didn’t provide the nurturing and comfort that most mothers eagerly provide to their new infants. She didn’t even want to bathe Anna. She fed her and changed her, but that was the extent of the care that she provided. Instead of watching that little baby suffer from a lack of bonding, my partner and I began to pick up the slack and properly care for little Anna. As a result, she bonded with my partner and I as her parents. She did NOT bond with her biological mother in this way. The clear message from all of this is that a child will form a parent-child bond with whoever actually parents that child. My niece knows that she came from my sister’s belly, but she has no doubts that my partner and I are her mommies.

    Last night, our little Anna was asking where the parents of the little girl in the movie Monsters, Inc. were. We answered that they were probably sleeping in their room. Then, I asked, “where are your parents?” Her answer? An enthusiastic “RIGHT HERE!” She is three years old and gets it. Why can’t you?

  64. Betsy
    August 24th, 2011 at 09:37 | #64

    If people would adopt these children instead of manufacturing their own it would solve two problems. Children would get parents they need, and parents would get children they want.

  65. Heidi
    August 24th, 2011 at 10:41 | #65

    Betsy, although I believe strongly in an individual’s right to procreate through whatever means are available to him or her, I tend to agree with you that there are enough children in the world who need homes without creating more for couples who cannot have them naturally. My partner and I talked about the possibility of having children before Anna came into our lives. We discussed ART and adoption. In the end, I felt more comfortable with the idea of adoption, but maybe that was because I have already had my own biological child. I have watched my best friend and her husband wait for over five years to get pregnant, and have seen the torment that she went through in deciding whether to pursue ART and/or adoption. I can happily report that she discovered that she was pregnant about 12 weeks ago! But the idea that she could possibly never have her own biological child caused her much grief over these past five years. I won’t judge the choices that people make about bearing or adopting children, partly because I believe those decisions are personal and private, but also because I have never been in their shoes (although I am now infertile–endometriosis).

    Anyway, we haven’t ruled out the possibility of adopting in the future in order to give Anna a brother or sister, but for now, we have our hands full!

  66. August 24th, 2011 at 12:33 | #66

    @Heidi
    “I believe strongly in an individual’s right to procreate through whatever means are available to him or her”

    You believe in something that doesn’t exist. Individuals do not have a right to procreate through whatever means are available to him or her.

    There is indeed a fundamental human right, that everyone possesses equally, to marry someone of their choice and have sex and procreate, but there are other rights at stake too. That means that society can prohibit whatever means that violate other people’s rights or are against the public interest, such as intentional unmarried procreation, or procreating with children, or with close relatives, or with anonymous donors, or using dangerous or expensive technology, or technologies that put the child at risk of defects.

    The only fundamental right is to marry someone eligible to marry and then have sex with your spouse.

    Too bad about your friend, but two things: it’s not so bad not to have children, and she made a trade-off: a life of independence and refusal to be a mother and a wife in her twenties, in exchange for torment for the rest of her life. I hope her pregnancy ends in silence, as a lesson to her and everyone else.

  67. Anne
    August 24th, 2011 at 12:35 | #67

    @Patrick Hogan
    ” First: I would recommend that you get to know at least one gay couple before slapping condemnations on all of us.”

    @Emma
    “Anne, you say that you only know what you read and hear about homosexual relationships. Is this true?”

    Settle down folks….I know plenty of homosexual couples. Three of my first cousins are gay. What I don’t know is what their attraction is to each other.

    What I was referring to is what I hear and read and observe about the broad range of gender quailities that homosexuals attribute to each sex. And the fact that the only place Rob seems to be able to identify specific gender traits and desires is in the male pedophile.

    “Maybe you would best serve the truth of which you speak so highly by going out and befriending a few real same-sex couples, instead of just basing your reality on what you merly read and hear.”

    Maybe you and Patrick should stop jumping to conclusions about what I don’t say.

  68. Anne
    August 24th, 2011 at 13:00 | #68

    @Heidi
    “The mistake that you make in the above comment is the assumption that one who donates sperm or eggs is a parent.”

    You’re right. They’re not parents. So they should stop making children.

    @Heidi
    “And he voluntarily and knowingly agrees to surrender any possible legal tie to the resulting child(ren).”

    ‘Cause it’s all about him and the person he’s giving the ‘resulting child(ren)’ to. Don’t any body worry about what the ‘resulting child(ren)’ want(s). It’s not like they have any legal position we need to concern ourselves with.

    “The child that results belongs to the couple, not to the donor of genetic material or the surrogate.”

    The child belongs to God. Do you even hear how detached and cold your argument sounds? It’s a business deal.

    “genetic material” “artificial reproductive technology” “assistance of a third person” “resulting child”???

    THEY’RE HUMAN BEINGS!!! CONCEIVED and BORN are the words you’re looking for. They’re not in a laboratory. They’re inside our bodies.

    “Anyway, we haven’t ruled out the possibility of adopting in the future in order to give Anna a brother or sister, but for now, we have our hands full!”

    You’re considering adopting (a person) in order to “give” Anna a sibling? Lucky Anna. I hope for “the resulting atoptee’s” sake, that Anna likes “her” present. They’re people; not toys.

  69. Deb
    August 24th, 2011 at 13:23 | #69

    Emma :
    Anne, you say that you only know what you read and hear about homosexual relationships. Is this true? You don’t actually know any same-sex couples your self, but rather base your judgements on what you read and hear? Where do you read and hear what you use to determine or judgement of same-sex couples? Here on teh Ruth Blog, where people agree that same-sex couples are quagmired in a cesspool of sin? Doesn’t that seem like an echo-chamber to you?

    Maybe you would best serve the truth of which you speak so highly by going out and befriending a few real same-sex couples, instead of just basing your reality on what you merly read and hear.

    I knew/know of family members in homosexual relationships. One of the relationships was controlling and involved substance abuse. The other family member is in and out of relationships (living with the other person) as needed for financial reasons. Neither one has had a relationship that has lasted past ten years. I also know details about friend’s homosexual relationships that involved children. I mentioned one particular situation, twice, that ended very badly for the adopted children (again the couple split before ten years), and I got no response from the pro- SSM crowd.

    How’s that for an echo chamber?

  70. Heidi
    August 24th, 2011 at 13:53 | #70

    @John Howard
    “That means that society can prohibit whatever means that violate other people’s rights or are against the public interest, such as intentional unmarried procreation…”

    Stop right there because you are dead wrong John. I don’t know where you got your law degree, but you might ask for your money back. There is no legal requirement to marry before one may bear children, and any such requirement would be unconstitutional. The state may not interfere with an individual’s PRIVATE decision to procreate, whether one does that with a opposite-sexed partner through “old-fashioned” means or whether one does that with a turkey baster. Your repeated claims about what are and what are not fundamental rights are not supportable by any mandatory legal authority of which I am aware and I AM a lawyer. YOU may believe that “The only fundamental right is to marry someone eligible to marry and then have sex with your spouse,” but such a claim is contrary to SCOTUS precedent. So please stop making assertions about what is and what is not legal when you have no legal grounds for such statements!

    “Too bad about your friend, but two things: it’s not so bad not to have children, and she made a trade-off: a life of independence and refusal to be a mother and a wife in her twenties, in exchange for torment for the rest of her life. I hope her pregnancy ends in silence, as a lesson to her and everyone else.”

    This may be the most horrific and cruel statement that I have read on here–especially the last sentence. Are you actually hoping that my friend miscarries or gives birth to a stillborn? That is just plain sick.

  71. Betsy
    August 24th, 2011 at 14:50 | #71

    Heidi, I agree. John Howard, that was way over the top. Reign in it, would you?

  72. Sean
    August 24th, 2011 at 15:00 | #72

    “I tend to agree with you that there are enough children in the world who need homes without creating more for couples who cannot have them naturally.”

    Why does it make sense for different-sex couples to create more children, if there are already excess children, who need to be adopted? If you think gay people shouldn’t be allowed to reproduce because of a surplus of children, why is it ok for straight people to do it?

  73. August 24th, 2011 at 16:12 | #73

    @Heidi
    What SCOTUS precedent? Eisenstadt I’m guessing? That was about contraception, not conception. It referred to single people making decisions about whether or not to procreate, but didn’t say that they had a right to go ahead and procreate without marrying first. In fact Zablocki five years later affirmed that states could validly have fornication laws that prohibited unmarried people from having sex and procreating, and so states should allow people to marry if they are going to let them procreate.

    There is no right to unmarried sex or procreation, but that doesn’t mean we can’t let people do it. There is no right to drive a car or fly an airplane, but we can still let people do it. That doesn’t mean we have to ban flying airplanes or driving cars, or enforce fornication laws or ban donor conception, but it does mean states could, and SCOTUS would find no fundamental human right was violated, I am confident.

    At any rate, your contention that people should be allowed to do whatever they feel like to make a human being is patently ridiculous, perhaps the most absurd and horrific statement that I have read on here.

  74. bman
    August 24th, 2011 at 17:26 | #74

    Ken :
    Sorry bman, you’re wrong. Marriage licenses are not granted based on the anticipated sexual activity of a couple.

    You are stating this without any supporting evidence.

    If marriage does not imply a sexual relationship why does immigration law consider it fraud if the immigrating partner refuses to consummate the marriage with sex?

    Why do you think marriage licenses are denied to a brother and sister if marriage has nothing to do with legally recognizing a sexual relationship?

    Why do you suppose a marriage annulment can be legally granted on the condition a couple never consummated the marriage with sex?

    Why do you suppose fornication laws punished sex outside of marriage if marriage had legally nothing to do with sex?

    And their not based on whether or not the couple will reproduce. If they were, older women and infertile men and women of all ages would be prohibited from marriage.

    This is true but its a moot point.

    Although marriage does not require a couple to reproduce, it formally recognizes their right to do so.

    Thus, even an elderly man and woman would obtain legal recognition of their right to have sex and reproduce through marriage, regardless of whether they are infertile reproduce or not.

    By analogy, its like a fishing license. It does not require you to catch fish but it legally recognizes your right to do so.

    Just as a fishing license is about fishing even if one catches no fish, a marriage license is about a recognized right to procreate with one’s partner even if they never reproduce.

    I mentioned fornication laws. Currently those laws are not being enforced. But given the negative impact that irresponsible sex and unwed childbirth are having on society, there is a rational basis to enforce those laws. If they were enforced, marriage would protect a couple’s sexual relationship at law from prosecution because marriage is about a legally recognized sexual relationship between a man and woman.

    Marriage legally binds two consenting adults together who seek to form a family (which may or may not include children). Their sexual practices are their own private business and not any concern of the state. Any they’re certainly not any concern of yours.

    Privacy is legally protected, of course, but as already noted by the questions, public marriage law is about legal recognition of the sexual relationship between a man and woman.

    Public morality is also satisfied by marriage. Sex outside of marriage still has a social stigma that is taken away only by marriage.

    This also means, however, that a same sex marriage law would confer public recognition on men having sex with men, which is a maladaptive behavior at many levels.

    Society has the right to withhold approval or recognition from behaviors that are not good for the general population to adopt.

    It also has the right to selectively approve or recognize only behaviors that would be good if everyone generally adopted them.

    This idea was touched upon in Lawrence v,. Texas:

    “… a personal [same sex] relationship…is within the liberty of persons to choose without being punished as criminals …. The present case.. [however]…does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

    Thus, Lawrence forbids criminalizing private homosexual relationships between consenting adults but it permits public policy to formally recognize and prefer opposite sex relationships with marriage.

  75. Patrick Hogan
    August 24th, 2011 at 18:13 | #75

    Anne :
    What I was referring to is what I hear and read and observe about the broad range of gender quailities that homosexuals attribute to each sex. And the fact that the only place Rob seems to be able to identify specific gender traits and desires is in the male pedophile.

    Maybe you and Patrick should stop jumping to conclusions about what I don’t say.

    Let’s look at what you actually did say:

    Anne :
    I only know what I read and hear about homosexual relationships, but don’t many of them have a partner who is more feminine than the other?

    You clearly stated that you know nothing of homosexual relationships other than what you have heard and read; from that, @Emma and I would seem to be completely justified in inferring that you do not know any gay couples (since that would be knowledge, even if only ancillary knowledge, of gay relationships that did not come from reading or hearing about them).

    I’m glad to hear that the inference is wrong. However, given your previous statement on the matter, the inference was entirely justified: there was no “jumping to conclusions” necessary. The point I was making — that knowing the couples you condemn provides useful perspective — is still valid, as is the rest of my post.

  76. bman
    August 24th, 2011 at 23:36 | #76

    @Patrick Hogan : “Maladaptive sexual behaviors” have as much implicit societal approval as any other sexual behaviors between married couples. The constitutional right to privacy, as recognized by SCOTUS, does not limit itself to the right to have procreative sex within marriage; it explicitly recognizes the rights particularly of married couples) to engage in particularly non-procreative sex (see Griswold V. Connecticut, in which SCOTUS upheld the right of
    married couples to use artificial contraception).

    Lawrence V. Texas answers this in principle.

    <blockquote
    … a personal [same sex] relationship…is within the liberty of persons to choose without being punished as criminals …. The present case.. [however]…does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

    In other words, there is a difference between “sexual behavior protected by the right to privacy” and “formal government recognition of a sexual relationship.”

    Sexual behavior protected by privacy is properly defined by the word “permission,” not the word “approval.”

    Formal government recognition of marriage, in turn, is a matter of societal approval of reproductive mating within marriage, and is not a mere permission.

  77. Patrick Hogan
    August 25th, 2011 at 01:12 | #77

    John Howard :
    @Heidi
    What SCOTUS precedent? …There is no right to unmarried sex or procreation, but that doesn’t mean we can’t let people do it. There is no right to drive a car or fly an airplane, but we can still let people do it. That doesn’t mean we have to ban flying airplanes or driving cars, or enforce fornication laws or ban donor conception, but it does mean states could, and SCOTUS would find no fundamental human right was violated, I am confident.

    Iin Lawrence v. Texas, SCOTUS explicitly upheld the right to “unmarried sex” — since SCOTUS upheld the right to private, consensual sex between same-sex couples and struck down TX law (and all other state laws) prohibiting such sex, despite the fact that same sex couples are not allowed to marry in TX and, even if they were married elsewhere, their marriages are not recognized by the state of TX. I find it highly unlikely – based upon this precedent, and its foundation in the right to privacy — that laws prohibiting sex between any two consenting adults would be upheld.

  78. Patrick Hogan
    August 25th, 2011 at 01:54 | #78

    bman :

    Ken :
    Sorry bman, you’re wrong. Marriage licenses are not granted based on the anticipated sexual activity of a couple.

    You are stating this without any supporting evidence.
    If marriage does not imply a sexual relationship why does immigration law consider it fraud if the immigrating partner refuses to consummate the marriage with sex?

    Interestingly enough, I read the link you provided concerning immigration law and marriage:

    If the US citizen resfuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.

    In other words: if someone who substantially gains from the legal status of being married marries and refuses to have sex, fraud is implicated; in general, though, non-consummation is not considered to implicate fraud. The source you provided countered your example in the very next sentence.

    bman :
    Why do you think marriage licenses are denied to a brother and sister if marriage has nothing to do with legally recognizing a sexual relationship?
    Why do you suppose a marriage annulment can be legally granted on the condition a couple never consummated the marriage with sex?

    There is a difference between the concept of granting marriage licenses based on (contingent upon) presumed sexual activity and being willing to void marriage licenses based on the lack thereof upon complaint. In other words: the state makes no requirement that sexual activity take place (duh), but does allow lack of sexual activity when it is typically expected by society as grounds for dissolution of the contract. Non-sex as grounds for dissolution reflects societal expectations of marriage — not government requirements.

    Why do you suppose fornication laws punished sex outside of marriage if marriage had legally nothing to do with sex?

    The key part of this sentence is the past tense of the word “punished”. Such laws, even in places where they might still be on the books, are not enforced; the right to privacy has preempted any power of the state to peer into our bedrooms to create regulations for our sex.

    This is true but its a moot point.
    Although marriage does not require a couple to reproduce, it formally recognizes their right to do so.
    Thus, even an elderly man and woman would obtain legal recognition of their right to have sex and reproduce through marriage, regardless of whether they are infertile reproduce or not.

    By that argument, a same sex couple obtains the same license to reproduce — despite being physically incapable of doing so directly and unaided.

    Just as a fishing license is about fishing even if one catches no fish, a marriage license is about a recognized right to procreate with one’s partner even if they never reproduce.

    Again: nothing in here that applies exclusively to opposite sex couples. Even if two guys go out fishing together and neither of them brings a hook, their fishing licenses are still valid.

    I mentioned fornication laws. Currently those laws are not being enforced. But given the negative impact that irresponsible sex and unwed childbirth are having on society, there is a rational basis to enforce those laws. If they were enforced, marriage would protect a couple’s sexual relationship at law from prosecution because marriage is about a legally recognized sexual relationship between a man and woman.

    Privacy is legally protected, of course, but as already noted by the questions, public marriage law is about legal recognition of the sexual relationship between a man and woman.

    If the right to privacy is a fundamental right, then laws against fornication would be held to heightened or strict scrutiny — not rational basis — under which they would be struck down (to be upheld, the laws would have to be written as narrowly as possible to achieve the desired effect while infringing as little as possible upon the fundamental rights; interestingly enough, there is some reason to believe — namely, the procreation argument — that it might be possible for laws to be written which prohibit unprotected heterosexual sex but leave open all homosexual and other non-reproductive types of sex). At any rate: until/unless SCOTUS rules that society has a right to make laws infringing upon private, consensual sexual conduct, fornication laws will not be enforced.

    Public morality is also satisfied by marriage. Sex outside of marriage still has a social stigma that is taken away only by marriage.
    This also means, however, that a same sex marriage law would confer public recognition on men having sex with men, which is a maladaptive behavior at many levels.
    Society has the right to withhold approval or recognition from behaviors that are not good for the general population to adopt.

    A social stigma that continues to apply to civil unions and domestic partnerships even when it does not apply to marriages of same sex couples? Thanks for making that point.

    But same sex marriage confers public approval on men having sex with men no more than it confers public approval on women having sex with women, and no more than interracial marriage confers approval on interracial sex and interfaith marriage confers public approval on atheists having sex with pagans. All that is conferred is the legal status of being married, not some larger, hidden agenda.

    Society has the right to withhold approval or recognition from behaviors that are not good for the general population to adopt.
    It also has the right to selectively approve or recognize only behaviors that would be good if everyone generally adopted them.

    In general, this is true — for cases which are properly tried under rational basis. However, there is no rational basis for disapproving of same sex coupling — there is no government interest that can be rationally furthered by denying same sex couples the right to marry. Furthermore, since we’re discussing a quasi-suspect class’s fundamental right, the case clearly deserves some level of heightened scrutiny; there is no way that laws restricting marriage to opposite sex couples while making no explicit demands with regard to procreation can possibly be upheld under heightened scrutiny.

  79. Anne
    August 25th, 2011 at 03:34 | #79

    @Patrick Hogan
    “You clearly stated that you know nothing of homosexual relationships other than what you have heard and read; from that, @Emma and I would seem to be completely justified in inferring that you do not know any gay couples”

    No Patrick. I have never been in a homosexual relationship, so of course I would only have “ancillary knowledge of gay relationships”. That does not in any way justify inference that I don’t know any gay couples.

    “The point I was making — is still valid, as is the rest of my post……(according to this compilation of answers to an admittedly unscientific survey)”

    An “admittedly unscientific survey” is little more than an opinion or as you say “a guess”. And the “evidence” you point to is hardly is hardly compelling.

    “But Rob’s “convenient use of the attraction to femininity” is based on the self-reported attractions of the child abusers in the studies to which he refers — it is not “random, self-serving” or “‘deceptive’”.”

    What Rob did with the “self-reported attrations of the child abusers” was to classify men who sexually abuse boys as heterosexual, completely dismissing the feminine component often present in male homosexual relationships. That was random and self-serving and deceptive.

  80. Anne
    August 25th, 2011 at 06:50 | #80

    @Patrick Hogan
    “But Rob’s “convenient use of the attraction to femininity” is based on the self-reported attractions of the child abusers in the studies to which he refers — it is not “random, self-serving” or “‘deceptive’”.”

    I have actually been considering my accusation that Rob was being “deceptive” and would like to offer him an apology, as it is unfair for me to have assumed or implied that decption was his intention. I do believe his interpretation and use of the ‘data’ is self-serving and less than objective. But I really have no right to presume his intention. Rob and I have discussed the importance of sincerity in meainingful dialogue and so to that end, my aplogies Rob.

  81. Heidi
    August 25th, 2011 at 07:29 | #81

    @Anne
    “You’re considering adopting (a person) in order to ‘give’ Anna a sibling? Lucky Anna. I hope for ‘the resulting atoptee’s’ [sic] sake, that Anna likes ‘her’ present. They’re people; not toys.”

    I cannot believe that you would say such a thing. I mean really. Have you never heard a heterosexual couple talk about giving a sibling to their already existing child? Obviously, a decision to adopt a child would be a serious endeavour. And having already raised one child to adulthood (and for much of that time being a single parent), I know quite well that children are people and not “toys.”

    John Howard, Eisenstadt stands for the proposition that the state may not interfere with an individual’s private decisions with respect to marriage, procreation and childrearing. According to the Court, “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

    Zablocki was about whether the state could interfere with a person’s right to be married on the grounds that the person seeking to be married owed back child support. The Court ruled that such a law was unconstitutional. It had nothing to do with laws regarding procreation. Finally, Lawrence v. Texas ruled that adult, private, consensual intimate sexual relations could not be criminalized by the state. If the state cannot punish you for something, it stands to reason that you have a right to do that something. That is the principle behind the free speech clause of our First Amendment, for example. The government cannot punish you for (most) speech, therefore, the individual citizen has a right to free speech. Whether you like it or not, consenting adults in this country are free to engage in unmarried sex (thus they have the right to do so) and are free to procreate within or without the bonds of marriage.

    As for HOW a child comes into existence, I suspect that this too would be an issue that is protected by the fundamental right to privacy that also protects other sexual and reproductive decisions. But please, keep insisting that there is no right to have sex outside of marriage or to procreate outside of marriage. It just shows how much you misunderstand the protections afforded to each individual by virtue of our Constitution.

    In any event, I don’t know why I am wasting my time arguing with someone who wished that my best friend’s pregnancy would “end in silence, as a lesson to her and everyone else.” UGH.

  82. Ken
    August 25th, 2011 at 09:57 | #82

    @Deb
    Deb, you misunderstood the point I was making. I’m not trying to legitimize anal sex. I’m not stating an opinion on it one way or the other. Why? Because consensual sexual activity between adults is not my business, it’s not yours and it’s not the government’s. You somehow wrongly concluded that I think same-sex couples should have marriage equality because heterosexuals have anal sex. That’s ludicrous. I was responding to bman who tried to use anal sex as the reason why same-sex couples (I assume he somehow includes lesbians in there) should NOT be allowed to marry. See the difference? I was simply pointing out that if anal sex is justification for denying a couple a marriage license, you need to apply the rule to heterosexuals as well. You see my point, right? In Lawrence and Griswold SCOTUS upheld the right to private consensual sexual conduct between adults so your claim that a couple’s sexual practices should determine whether or not they should be granted a marriage license is Constitutionally incorrect.

  83. Ken
    August 25th, 2011 at 10:22 | #83

    @bman
    bman – One problem (and there are many) with your argument is that it relies on the false premise that it is not a good idea for the general population to adopt their natural sexual and affectional orientation. If we boil your argument down, we find that you’re advocating for people living in the closet. That social experimentation has been done and the general consensus (although you’re still a hold out) is that it failed. It destroys families. It destroys lives. The closet lifestyle that you advocate for is extremely unhealthy and we will resist the push of people like you to force future generations to suffocate in it.

    Another problem is your intentional misreading of Lawrence. You somehow take the words: “The present case.. [however]…does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” as the court’s opinion that the government is not required to give formal recognition to same-sex relationships. Read it again. The key words are “does not involve”. The court was not saying that the ruling “permits public policy to formally recognize and prefer opposite sex relationships with marriage” as you’ve somehow interpreted it. What they’re essentially saying is that “this case doesn’t address the issue”. In other words, it’s still open to litigation.

  84. August 25th, 2011 at 12:00 | #84

    Deb :

    Emma :
    Anne, you say that you only know what you read and hear about homosexual relationships. Is this true? You don’t actually know any same-sex couples your self, but rather base your judgements on what you read and hear? Where do you read and hear what you use to determine or judgement of same-sex couples? Here on teh Ruth Blog, where people agree that same-sex couples are quagmired in a cesspool of sin? Doesn’t that seem like an echo-chamber to you?
    Maybe you would best serve the truth of which you speak so highly by going out and befriending a few real same-sex couples, instead of just basing your reality on what you merly read and hear.

    I knew/know of family members in homosexual relationships. One of the relationships was controlling and involved substance abuse. The other family member is in and out of relationships (living with the other person) as needed for financial reasons. Neither one has had a relationship that has lasted past ten years. I also know details about friend’s homosexual relationships that involved children. I mentioned one particular situation, twice, that ended very badly for the adopted children (again the couple split before ten years), and I got no response from the pro- SSM crowd.
    How’s that for an echo chamber?

    Maybe if they’d had the same societal and legal support and recognition that heterosexual couples take for granted, they’d have stayed together longer and been better parents. It’s hard to do when your “friends” and family denigrate your life and your love and your family, I would imagine.

  85. August 25th, 2011 at 13:45 | #85

    @Patrick Hogan
    Lawrence had nothing to do with sex. It said the state can’t prohibit activities that homosexual people engage in privately, which are often called “sodomy” or “unnatural acts” or “crimes against nature” and are not sex. They usually involve stimulating the sex organs, hence the confusion.

  86. August 25th, 2011 at 13:49 | #86

    @Patrick Hogan
    “By that argument, a same sex couple obtains the same license to reproduce — despite being physically incapable of doing so directly and unaided. ”

    That is correct, and that is why they shouldn’t be allowed to be married, because it is unethical for them to reproduce and is bad public policy to give them the same license to reproduce. They are in the same boat as siblings and other couples that would be unethical to reproduce. People have a right to reproduce but not with anyone, and reproducing with someone of the same sex should be prohibited like incest is.

  87. August 25th, 2011 at 14:06 | #87

    @Heidi
    Yeah, see the key phrase “the decision” there? Just like people without a drivers license should be allowed to make the decision about driving, but that doesn’t mean they don’t have to do it legally once they decide to do it. They still have to get a drivers license.

    Zablocki turned on the fact that the state wasn’t doing anything to prevent the guy from siring more children, because it wasn’t enforcing its fornication law. So, given that it was allowing him to procreate, it was forcing him to do it illegally. Not letting him marry the mother of his children made no sense (perhaps it would mean polygamy should be legal too?). I agree with their logic, that if the state lets people procreate it should let them marry. That means SSM should be legal as long as same-sex reproduction is legal, which it is. I think lots of people like On Lawn and Maggie and Dr J think that, despite Zablocki, it would be possible to prohibit SSM without prohibiting the couple from creating offspring somehow, which makes no sense. I think, if Wisconsin was enforcing its fornication law back in 1978, then the case would have been very different, because not letting him marry while he owed child support for his other children would have meant not letting him create more children. But I can also see the logic that being prohibited from creating children due to not supporting them is unconstitutional, as poor people with no income should also be allowed to marry and procreate.

  88. bman
    August 25th, 2011 at 14:18 | #88

    @Sean :
    bman: It’s an established principle that a society will look to its laws for what is moral, whether those laws are genuinely moral or not.”

    Sean. Maybe that points out the fact that laws aren’t made around someone’s perception of morality, but rather, around what protects individuals from government and each other…who gets to decide what’s moral?…

    The problem you mentioned is a morality problem, “straight people producing children they won’t take care of.”

    Clearly, we need public policy to promote a morality opposite of that in order to fix the problem.

    So, your question,”whose morality” is not difficult to answer. We should discourage a morality that would continue the problem and promote a morality that can resolve the problem.

    Furthermore, the problem you mentioned is part of a much larger problem.

    Declining marriage rates, increasing rates of adultery, divorce, abortion, unwed child births, teen pregnancies, single parent households, welfare costs, juvenile delinquency, unwanted children, increased prevalence of homosexuality, general sexual irresponsibility, and more, can all be traced to “a morality” underlying those problems.

    It seem obvious, whatever morality increases those things in society is the one we don’t want to promote.

    We also know whose morality that is.

    At Kinsey’s urging, the country’s laws were gutted to resemble the free love, free life style Kinsey alleged Americans were living all along, and could finally live out with a free and open spirit–no more lies or pretense. Thus the 1955 American Law Institute Model Penal Code jettisoned the “common law” sexual standards that were based upon Biblical authority/precedent for “scientific law” based on Kinsey’s allegedly “objective data“….

    Shortly thereafter, fornication, cohabitation and adultery were decriminalized so that they would become common, normal, and harmless, as Kinsey said they had been all along….The Judeo-Christian worldview was expunged from the classroom. Schools could no longer teach that fornication, adultery or cohabitation were illegal, nor could the health teachers imply that sex should be confined to marriage because that would reflect a “religious,” thus allegedly a non-scientific, worldview.

    The result of Dr. Kinsey’s mission has been totally antithetical to the utopia he predicted. Instead of reducing the socio-sexual ills that he claimed were rampant in pre-Kinsey America, the implementation of the Kinsey worldview has increased extant global sexual trauma while ushering in a host of new ills that are objectively defined as sexual anarchy. Like a cancer spreading throughout the body, sexual anarchy has spread throughout the fabric of society, affecting every aspect of American life and every man, woman and child. Sexual anarchy: The Kinsey legacy, Dr. Judith Reisman, article at lifesitenews.com.

    So, the morality we need to get rid of is Kinsey’s morality.

    Same sex marriage is a corollary of Kinsey’s morality being expanded to society. And if that is made into law other stages beyond that would develop as well. The article, for example, mentioned that sexologists are already preparing the way for child-adult sex to be normalized in the future.

    What you propose is a bad law because it would protect the current socoi-sexual trends from being reversed, which makes for plenty of harm in itself. The logical course of action is to reverse course so the nation can heal, but a same sex marriage law would virtually close the door on that. It also would commit America to Kinsey’s model full speed ahead as it were. Current trends would get even worse and new socio-sexual problems like prevalent child sex would emerge.

    Whoever votes for same sex marriage effectively votes to protect the “achievements”of Kinsey’s model and to “advance” them to the next logical stage, with all the hurts that attend it.

    We know whose morality is behind the problem. The solution is for public policy to promote the opposite morality, i.e., the Judeo-Christian morality.

  89. Sean
    August 25th, 2011 at 15:58 | #89

    “public marriage law is about legal recognition of the sexual relationship between a man and woman.”

    You excluded marriage law that is about legal recognition of the sexual relationship between a man and a man, or a woman and a woman. Same-sex couples can get married in some states.

    “Society has the right to withhold approval or recognition from behaviors that are not good for the general population to adopt.”

    Provided they withhold them equally. If a straight majority disapproves of a gay minority’s behaviors, and tries to outlaw them, that is not equal application of the law. Since the vast majority of people are straight, and all people have an unchosen sexual orientation, there is little effectiveness in trying to legislate sexual orientation. The US Supreme Court has already ruled out legislating private sexual conduct.

    “It also has the right to selectively approve or recognize only behaviors that would be good if everyone generally adopted them.”

    Laws cannot be crafted that disproportionately affect one group without a rational public purpose. There is no rational public purpose in having the government promote one kind of sexual orientation over another sexual orientation.

    “Thus, Lawrence forbids criminalizing private homosexual relationships between consenting adults but it permits public policy to formally recognize and prefer opposite sex relationships with marriage.”

    The quote you cited said no such thing. It did say that the present case before the court did not address legalized relationships for same-sex couples.

  90. bman
    August 25th, 2011 at 16:11 | #90

    @Patrick Hogan :

    bman: If marriage does not imply a sexual relationship why does immigration law consider it fraud if the immigrating partner refuses to consummate the marriage with sex?

    Patrick Hogan: If the US citizen resfuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated….The source you provided countered your example in the very next sentence.

    The issue is whether marriage legally implies a sexual relationship.

    How do the words you cited counter that?

    The context says,

    Whether a marriage is considered a sham(“fake”, i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen refuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.”

    Authorities are trying to prevent “marriage for immigration purposes only.”

    If an immigrant refuses to sexually consummate (complete) the marriage it would be viewed as an attempt to use marriage for immigration purposes only.

    The point you seem to miss is that a sexual consummation of marriage would be presumed at law in order to prosecute on that basis.

    If charges are dropped against the immigrant because the US citizen refused to consummate the marriage its because the immigrant can not be held responsible for what the partner does.

    It does not “counter” the idea that law expects consummation of the marriage. It only means the immigrant is not charged with immigration fraud if the reason for non-consummation was beyond the control of the immigrant.

  91. Deb
    August 25th, 2011 at 16:42 | #91

    @Emma

    For your information, the controlling/substance abuse relationship broke up because one partner decided to start dating heterosexually.

    And the couple that ruined the kids’ lives… the breakup was over money and the constant manipulation of the primary adopter. I believe infidelity was involved, too. The other partner decided to give up all parental rights (even though the kids were more attached emotionally to this parent and they had come from real upheaval, too) to avoid losing more money and because the manipulative partner was just. too. difficult. to deal with. Sorry, but it was weak behavior and the kids suffered.

    What makes you think their family denigrated them? On the contrary, both families are/were very loving to the homosexual family members. Just because I’m here fighting to maintain the true definition of marriage doesn’t mean I don’t love them and treat them poorly- I just don’t think it is good for society to redefine marriage. Doesn’t your jumping to conclusions make you PREJUDICED against pro-traditional marriage supporters? Maybe if you knew some personally you wouldn’t jump to these conclusions (how does the shoe feel on the other foot?).

  92. bman
    August 25th, 2011 at 20:34 | #92

    @Ken : bman – One problem (and there are many) with your argument is that it relies on the false premise that it is not a good idea for the general population to adopt their natural sexual and affectional orientation.

    I made several arguments in that post and you did not quote me on anything, so I am not sure which one you intend.

    If we boil your argument down, we find that you’re advocating for people living in the closet…

    Again, please quote the argument in the post are you referring to.

    Another problem is your intentional misreading of Lawrence…The key words are “does not involve”…what they’re [the Lawrence court is] essentially saying is that “this case doesn’t address the issue”. In other words, it’s still open to litigation.

    The phrase “does not involve” was used many times in the ruling.

    Some excerpts:

    The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

    Was the phrase used by the court to mean “still open to litigation” when applied to “prostitution,” “public conduct,” “consent,” and such?

    Since it obviously was not used that way for those things, the last instance quoted does not require that meaning either.

    And what about the fact the case “does not involve” formal government recognition of homosexual relationships yet it was mentioned?

    The case “did not involve” many things, so why did the court mention formal government recognition?

    If you answer that question, I would be glad to pick up from there and further discuss the comment I made on that.

  93. Patrick Hogan
    August 25th, 2011 at 22:13 | #93

    bman :
    In other words, there is a difference between “sexual behavior protected by the right to privacy” and “formal government recognition of a sexual relationship.”
    Sexual behavior protected by privacy is properly defined by the word “permission,” not the word “approval.”
    Formal government recognition of marriage, in turn, is a matter of societal approval of reproductive mating within marriage, and is not a mere permission.

    Do you have any law or court case to substantiate the claim that government recognition of marriage constitutes approval of reproductive sex within marriage but not any other kind of sex? I know SCOTUS has upheld the right to sex without marriage (for example, Lawrence), the right to sex within marriage without procreation (Griswald), the right to sex outside of marriage without procreation (Einstadt), the right to marriage without sex or procreation (Turner v. Safley), and the right to make decisions concerning procreation entirely independently from marriage (Roe v. Wade); however, I can’t name any SCOTUS case involving “approval” of behavior rather than the right to engage in it. A review of marriage laws in a sampling of states revealed requirements to enter into marriage, but I found no indication that the purpose of any law as written was to grant “approval” of any behavior, procreative or otherwise.

    Oh — and that’s not meant to be hostile or challenging; I really am just curious to know if there is any legal precedent to your claim.

  94. Patrick Hogan
    August 25th, 2011 at 23:57 | #94

    Anne :
    @Patrick Hogan
    “You clearly stated that you know nothing of homosexual relationships other than what you have heard and read; from that, @Emma and I would seem to be completely justified in inferring that you do not know any gay couples”
    No Patrick. I have never been in a homosexual relationship, so of course I would only have “ancillary knowledge of gay relationships”. That does not in any way justify inference that I don’t know any gay couples.

    Again: knowing any gay couple constitutes having knowledge of gay relationships other than what you have heard and read; it involves having had the opportunity to observer the couple’s relationship. Hence, when you stated that you had no knowledge of gay relationships other than what you have heard and read, readers were entirely justified in believing that a disavowal of any knowledge other than hearing and reading would include a disavowal of any direct observation of a gay relationship — thus, it was completely rational to infer that you did not know any gay couples.

    Simply put: the way that you phrased your disavowal of any knowledge of same sex relationships gave substantial reason to readers to believe as I did. I’ve accepted that you did not mean your statement to be so broad as it was written, and really can’t see any reason for you to continue to be so offended by an inference which was in no way central to what I wrote.

    An “admittedly unscientific survey” is little more than an opinion or as you say “a guess”. And the “evidence” you point to is hardly is hardly compelling.

    Actually, by “the rest of my post,” I was primarily referring to the substantial opposition I had to your take on Rob’s video. I considered dealing with the stereotype that gay couples consist of one butch and one femme to be nothing more than a mildly interesting side note — and, unless you are seriously implying that the caricature of the femme gay man to which you refer has a feminine quality and lack of masculine quality such as to make him substantially similar in terms of gender expression and secondary sexual characteristics to a prepubescent child, I still consider it nothing more than an a mildly interesting aside.

    As to the survey: it is substantially more evidence than you have presented to make your case that gay couples tend to include one man who is effeminate. However, since you asked, there are more scientific studies which have looked specifically at facial attraction, the appeal of stereotypically masculine body types, and at pheromones. Others have examined physiological ways in which brains are wired for attraction.

    I would also refer you to this report from Box Turtle Bulletin which contains links to many of the studies referenced in the discussion concerning the sexual abuse of children. It has a section that specifically deals with the attractions, as measured in the lab, of people who abuse children.

    What Rob did with the “self-reported attrations of the child abusers” was to classify men who sexually abuse boys as heterosexual, completely dismissing the feminine component often present in male homosexual relationships. That was random and self-serving and deceptive.

    Actually, what Rob did was to report what others have found. The yet-to-be-substantiated “feminine component often present in male homosexual relationships” was not, in any of the studies I have read, found to be relevant; the men in the studies who self reported as gay also showed physiological reactions to stimuli consistent with being attracted to adult men, while the men in the studies who self reported as straight showed physiological reactions to stimuli consistent with being attracted to adult women — see the Box Turtle Bulletin report for further details and sources.

    Additionally, the terminology that I was using in my post (androphile/guinophile), I picked up from reading this blog post from Warren Throckmorton, a conservative evangelical psychology professor, dealing specifically with the myth that gay men are more attracted to children than are straight men.

    The original study to which I linked was flawed but accessible. In contrast, the links in this post are to rigorous, peer-reviewed studies on a range of topics related to sexual attraction, particularly pertaining to the attraction experienced by gay men. I hadn’t considered the topic to be worth addressing in this level of detail, but, since you asked, here it is.

  95. Patrick Hogan
    August 26th, 2011 at 00:06 | #95

    John Howard :
    @Patrick Hogan
    Lawrence had nothing to do with sex. It said the state can’t prohibit activities that homosexual people engage in privately, which are often called “sodomy” or “unnatural acts” or “crimes against nature” and are not sex. They usually involve stimulating the sex organs, hence the confusion.

    According to the majority opinion in Lawrence, the case specifically dealt with sex:

    Lawrence v. Texas
    …The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices

    Emphasis mine.

    You may not count anything other than an unprotected penis in a vagina as sex, but the English language and the SCOTUS do not ascribe to such a narrow definition.

  96. Patrick Hogan
    August 26th, 2011 at 00:37 | #96

    John Howard :
    @Patrick Hogan
    “By that argument, a same sex couple obtains the same license to reproduce — despite being physically incapable of doing so directly and unaided. ”
    That is correct, and that is why they shouldn’t be allowed to be married, because it is unethical for them to reproduce and is bad public policy to give them the same license to reproduce. They are in the same boat as siblings and other couples that would be unethical to reproduce. People have a right to reproduce but not with anyone, and reproducing with someone of the same sex should be prohibited like incest is.

    Adult incest is primarily prohibited due to the potential for genetic mutations in any resulting offspring. Interestingly enough, certain types of incestuous marriages are allowed — namely, six states allow marriage between first cousins if the couples meet certain sterility requirements. For example, Arizona allows first cousins to marry “if both are sixty-five years of age or older or if one or both first cousins are under sixty-five years of age, upon approval of any superior court judge in the state if proof has been presented to the judge that one of the cousins is unable to reproduce.”

    A further rational basis for prohibiting incest — one that extends to prohibiting sexual relationships between step-siblings — is the argument that, given the nature of parent-child and sibling-sibling relationships, there is a substantial difficulty in determining whether both parties to the relationship truly consent (as opposed to being either overtly or covertly coerced into the relationship). In other words: there is reason to suspect that relationships between two people who share a close, familial bond are not entered into freely.

    Furthermore, prohibitions against incest are and should be subject to a less exacting standard of review than prohibitions against gay sex because they merely infringe upon the rights to procreation and marriage (whereas prohibitions against gay sex completely strip gay people of any meaningful right to engage in sexual activity). It’s the difference between eliminating a few potential partners to advance a rational end that is directly connected to the means vs. eliminating all potential partners to advance personal moral disapprobation.

    Still further: a marriage license is not a license to reproduce. No license is necessary to reproduce; SCOTUS has upheld the right to reproduce outside of marriage and the right to decline to reproduce even in marriage. Furthermore, some states allow marriage only if procreation is impossible — you cannot argue that marriage constitutes a “license to reproduce” if certain people are only allowed to marry if they are incapable of reproducing.

    Last but not least: You have offered no evidence as to why gay people should be prohibited from reproducing (by which, I am assuming, you either mean having sex — without any chance of procreating, of course — or raising children conceived via sperm donor, birthed via surrogacy or brought into the family via adoption). The rational basis for prohibiting close relatives from marrying is explicitly stated in certain state laws; you have not even posited a rational basis for prohibiting same sex couples from procreating (however you meant it), much less shown that such a rational basis has ever been employed in the passage of any such restriction.

  97. Patrick Hogan
    August 26th, 2011 at 00:50 | #97

    bman :
    The issue is whether marriage legally implies a sexual relationship.
    How do the words you cited counter that?
    The context says,

    Whether a marriage is considered a sham(“fake”, i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen refuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.”

    Authorities are trying to prevent “marriage for immigration purposes only.”
    If an immigrant refuses to sexually consummate (complete) the marriage it would be viewed as an attempt to use marriage for immigration purposes only.
    The point you seem to miss is that a sexual consummation of marriage would be presumed at law in order to prosecute on that basis.

    But if the non-immigrant refuses to consummate the marriage, the marriage is still considered valid. The point is that, while many people expect sex in a marriage, there is no legal requirement for it.

    Turner v. Safley also upheld the right to marry even in cases where the marriage could never be consummated. In Turner, SCOTUS acknowledged that many people expect consummation but expressly rejected the idea that there is a legal expectation (that is, a statutory or procedural requirement) of it.

  98. Patrick Hogan
    August 26th, 2011 at 01:09 | #98

    bman :

    Another problem is your intentional misreading of Lawrence…The key words are “does not involve”…what they’re [the Lawrence court is] essentially saying is that “this case doesn’t address the issue”. In other words, it’s still open to litigation.

    The phrase “does not involve” was used many times in the ruling.
    Some excerpts:

    The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

    Was the phrase used by the court to mean “still open to litigation” when applied to “prostitution,” “public conduct,” “consent,” and such?
    Since it obviously was not used that way for those things, the last instance quoted does not require that meaning either.
    And what about the fact the case “does not involve” formal government recognition of homosexual relationships yet it was mentioned?
    The case “did not involve” many things, so why did the court mention formal government recognition?
    If you answer that question, I would be glad to pick up from there and further discuss the comment I made on that.

    Court decisions are intentionally narrow; specifically stating particular related issues on which the court did not rule helps to ensure that the ruling will be applied as narrowly as it was intended. The court did not consider cases of prostitution, public conduct or non-consent, so, yes, all are still open to litigation.

    Specifically, laws which punish homosexual prostitution, public conduct or non-consensual sex more severely than laws which punish similar heterosexual conduct are completely open to challenge. For example, laws prohibiting public lewdness and prostitution are often enforced more strongly against gay men than against heterosexuals (Palm Springs’ police department recently faced litigation over this issue), and so-called Romeo and Juliet laws (which reduce the penalties for particularly young adults who have consenting sexual relationships with minors close to but under the age of consent) frequently punish same sex relationships more severely than similarly situated heterosexual relationships.

    Likewise, government recognition of same sex relationships was specifically not addressed and, as such, is open to further litigation. The phrase “does not involve” is specific and precise: the court used it to identify issues which were considered by some legal experts to be related to the issue of private, consensual homosexual acts but upon which the court explicitly declined to rule.

    Furthermore, it is entirely likely that the majority opinion spelled out particular issues on which the court did not rule as a preemptive response to Justice Scalia’s dissent, which argued that the court did, despite its denial, rule in favor of requiring federal recognition of same sex relationships (one of the reasons Scalia dissented).

  99. Anne
    August 26th, 2011 at 03:59 | #99

    @Patrick Hogan
    “In other words: the state makes no requirement that sexual activity take place (duh),”

    My good friend is being sued for damages for “lack of marital services”.

    “but does allow lack of sexual activity when it is typically expected by society as grounds for dissolution of the contract. Non-sex as grounds for dissolution reflects societal expectations of marriage”

    Isn’t “societal expectations of marriage” and the “marriage contract” what we’re talking about?

    “— not government requirements.”

    To prove fraud?

  100. Robert
    August 26th, 2011 at 07:16 | #100

    Maladaptive. And you’re an sexual health expert? Because YOU find it icky doesn’t make it maladaptive. What even does that mean? You’re making up terms and not defining them. I think there are many holes in your logic. @bman

  101. Anne
    August 26th, 2011 at 08:43 | #101

    @Heidi

    “I cannot believe that you would say such a thing. I mean really. Have you never heard a heterosexual couple talk about giving a sibling to their already existing child?”

    Why are you so random about what you point to the heterosexual community to justify? It isn’t any better when they do it either.

    I’ve said it before, but it bears repeating: True parents make children the object of love, not the fulfillment of desire.

    “Obviously, a decision to adopt a child would be a serious endeavour. And having already raised one child to adulthood (and for much of that time being a single parent), I know quite well that children are people and not “toys.”

    Really? Because this sounds like a toy factory mentality to me:

    “genetic material” “artificial reproductive technology” “assistance of a third person” “resulting child” “give Anna a brother or sister”

    Heidi, you can’t do eveything you can to argue that the parental bond is disposable and then lay claim to it when you choose.

    Children aren’t toys, and parenthood isn’t a hobby.

  102. Anne
    August 26th, 2011 at 12:53 | #102

    @Patrick Hogan
    “I hadn’t considered the topic to be worth addressing in this level of detail, but, since you asked, here it is.”

    I didn’t ask. Pretty sloppy for someone who goes to such lengths as you do to pick apart other people’s comments and justify your responses.

    I do have a question though: Which of the many sources you posted is the one that absolutely classifies 100% of pedophiles as homosexuals, which is what Rob, who wants it to be true, did?

    For all of your ‘evidence’ it’s still science, not math. And weak science at that. There are no absolute conclusions to be drawn. Just observations and interperative conclusions drawn by falible human beings many with admitted agendas. I suggested a very plausible interpretation based on observation which has in no way been scientifically disproven.

    Rob took ALL of the paper cut out men out of the homosexual classification and put them into the heterosexual classification with a motive and substantial lack of reliable evidence.

    Regarding your reference to “the myth that gay men are more attracted to children than are straight men.”

    This wasn’t my contention. My contention is that Rob’s assertion of the opposite is unsubstantiated and self-serving and ignores the feminine component of many male homosexual relationships. (Which while you have accused me of “not substantiating” you have not denied exists, nor proven is absent in male pedophilia.) Site all the sloppy science you want. I’ve been to Greenwhich Village. And as I have now stated plainly, know several gay couples. Homosexual males are not drawn exclusivly to masculine physical traits.

    Your vocabulary, while not unimpressive, does not elevate your logic or your evidence.

  103. August 26th, 2011 at 13:08 | #103

    @Patrick Hogan
    There is a colloquial use of “sex” of course, which refers to more than just sexual intercourse. The point was Lawrence had nothing to do with sexual intercourse.

    @Patrick Hogan
    “Still further: a marriage license is not a license to reproduce. No license is necessary to reproduce; SCOTUS has upheld the right to reproduce outside of marriage and the right to decline to reproduce even in marriage.”

    Marriage IS a license to reproduce and should continue to be. No marriages should ever be prohibited from reproducing offspring using their own genes. Same-sex couples should be prohibited from reproducing with their own genes (which would require labs to create artificial gametes that represent no actual person).

    Tell me where SCOTUS upheld a right to reproduce outside marriage or to decline to reproduce in marriage while not being grounds for divorce. I think you are reading outside the lines.

    Lawrence affirmed that marriage is “about the right to have sexual intercourse,” at the very most essential dry bottom, while pointing out that it is of course about much more than just or simply that. But it sure affirmed that it is most essentially about the right to have sexual intercourse (and not sodomy, that was still a crime even for married couples).

  104. rjt
    August 26th, 2011 at 13:12 | #104

    @Anne: “True parents make children the object of love, not the fulfillment of desire.”

    Because true parent love their children but do not want them?

  105. bman
    August 26th, 2011 at 17:12 | #105

    Patrick Hogan: But if the non-immigrant refuses to consummate the marriage, the marriage is still considered valid.

    That presumes more than the clause requires.

    The words, “fraud on behalf of the immigrant” are key.

    Whether a marriage is considered a sham(“fake”, i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen refuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.

    Those words refer to whether “immigration fraud” was intended by one particular person, the immigrant.

    The website gave an example where an immigrant husband wanted to consummate the marriage but the citizen wife refused because she became romantically involved with another man.

    Should the immigrant be charged with intent to commit immigration fraud in that case?

    The answer, of course, is no.

    But that “no” is about as far one can go.

    You can’t take that “no” and conclude the marriage can’t be annulled due to lack of consummation.

    That would be a matter for family court, not immigration law.

  106. bman
    August 26th, 2011 at 21:31 | #106

    Patrick Hogan: Turner v. Safley also upheld the right to marry even in cases where the marriage could never be consummated. In Turner, SCOTUS acknowledged that many people expect consummation but expressly rejected the idea that there is a legal expectation (that is, a statutory or procedural requirement) of it

    Turner is about a prison regulation that effectively denied nearly all prisoners the right to marry for what seemed to be arbitrary reasons.

    One reason the regulation was stricken was, “….most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.”

    How can the state prevent nearly all prisoners from marrying when most would be able to consummate? Clearly, the regulation was arbitrary and too broad.

    Also, why did the court view future consummation as a reason to strike down the regulation unless marriage is legally recognized as a sexual relationship between a man and woman?

    And why did the court use the word “consummate” which means “to complete,” unless the court viewed sex as an act that “completes” marriage?

    In turn, how could sex “complete” marriage if marriage is not a sexual relationship?

    Anyway, the Turner court also affirmed a previous ruling where it upheld a New York Law that denied marriage to prisoners with life sentences:

    ….we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context. Our decision in Butler v. Wilson, 415 U.S. 953 (1974), summarily affirming Johnson v. Rockefeller, 365 F. Supp. 377 (SDNY 1973), is not to the contrary. That case involved a prohibition on marriage only for inmates sentenced to life imprisonment; and, importantly, denial of the right was part of the punishment for crime..”

    So, the US Supreme Court upheld the The New York court’s ruling in Johnson.

    Here are keys excerpts from the New York Johnson case:

    Those aspects of marriage which make it “one of the ‘basic civil rights of man, ‘” Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010 (1967) — cohabitation, sexual intercourse, and the begetting and raising of children — are unavailable to those in [plaintiff's] situation because of the fact of their incarceration [for life]…

    The state’s interest in marriage surely extends to the power to deny the right to marry to prisoners incarcerated for life who cannot be expected to perform the duties and obligations imposed on a husband by the state’s laws relating to marriage, such as, the duty to support wife and children, N.Y. Family Court Act ?? 412, 413 (McKinney Supp. 1972).

    Thus, it seems the Turner court viewed prisoners with life sentences as a different matter from prisoners without life sentences if state law denied marital rights as a punishment for life sentences.

    That raises the question of why the court said, “…most inmate marriages are formed in the expectation that they ultimately will be fully consummated.”

    Why it said “most” is unclear. Possibly, it meant that states can either allow or deny marriage to prisoners with a life sentence. In other words, it seems Turner did not make that a federal issue, but left it to the right of each state how it regulated that.

  107. bman
    August 26th, 2011 at 23:15 | #107

    bman: Was the phrase used by the court to mean “still open to litigation” when applied to “prostitution,” “public conduct,” “consent,” and such? Since it obviously was not used that way for those things, the last instance quoted does not require that meaning either.

    Patrick Hogan: The court did not consider cases of prostitution, public conduct or non-consent, so, yes, all are still open to litigation.

    I was not asking if those things would be “open to litigation.”

    Rather, did the court intend the phrase “does not involve” to be “other words” for “still open to litigation?”

    That seems highly unlikely.

    Also, the phrase, “still open to litigation” would not refer to court litigation in general, but to such cases as would likely reach the Supreme Court.

    When the court said, “The present case does not involve minors” did it intend, “The present case does not involve minors, which is still open to reaching the Supreme Court?”

    Or, did it simply mean, “The present case does not involve minors,” without intending it was open to reaching the Supreme Court?

    When the court said, “It does not involve persons who might be….coerced” did it mean, “the question of sexual coercion is still open to reaching the Supreme Court?” Most likely not, since that kind of case would be resolved by a lower court.

    Thus, it seems to me the phrase “does not involve” neither affirms or denies the idea of future litigation by the Supreme Court.

  108. Sean
    August 27th, 2011 at 06:31 | #108

    “My good friend is being sued for damages for “lack of marital services”.”

    If she made a commitment to provide such services, and then reneged, she may be liable. A partner to a marriage can expect sex; the government, however, cannot.

  109. Anne
    August 27th, 2011 at 20:14 | #109

    @rjt
    “Because true parent love their children but do not want them?”

    I wouldn’t think so.

  110. Patrick Hogan
    August 27th, 2011 at 21:35 | #110

    Anne :
    I didn’t ask. Pretty sloppy for someone who goes to such lengths as you do to pick apart other people’s comments and justify your responses.

    My apologies,. I assumed that, since you criticized my source as not being informative enough, you considered the topic to be worth addressing in greater detail and were requesting (albeit obliquely) that I do so. If that was not your intent, then I apologize for presuming so.

    I do have a question though: Which of the many sources you posted is the one that absolutely classifies 100% of pedophiles as homosexuals, which is what Rob, who wants it to be true, did?

    None of the sources I cited classify pedophiles as heterosexual or homosexual; they classify them, rightly, as pedophiles. But Rob never argued that pedophiles should be classified as anything other than pedophiles; rather, he argued that, of men who have an adult sexual orientation (i.e.: not pedophiles) but molest children (sexually regressed during times of emotional stress), the overwhelming majority identify as heterosexual. In his video, Rob said:

    The vast majority of men who abuse boys aren’t attracted to adults of either gender or are straight men with an emotional disturbance.

    Two of the links I posted do a particularly good job of examining the sexual attractions of straight men, gay men and pedophiles (and both support Rob’s point): Box Turtle Bulletin‘s “Testing the Premise: Are gays a threat to our children?” and Warren Throckmorton‘s post “Do gay men have more sexual interest in children than straight men do?”

    For all of your ‘evidence’ it’s still science, not math. And weak science at that. There are no absolute conclusions to be drawn. Just observations and interperative conclusions drawn by falible human beings many with admitted agendas.

    What, precisely, is weak about it? If your criticism is of the social sciences and of psychology in general, then I’m afraid we’ve reached an impasse in any discussion of sexual attraction; if your criticism is of any particular flaw in the methodology, sampling or reporting in one or more of the studies I presented, I would love to hear it.

    I suggested a very plausible interpretation based on observation which has in no way been scientifically disproven.

    An interpretation which has no basis in any evidence yet presented, whereas Rob’s interpretation is thoroughly grounded in the social sciences and supported by the studies which he referenced in the video and by the studies I have presented here. To be perfectly blunt, your interpretation “isn’t math” — just an observation and interpretative conclusion drawn by a fallible human being with an admitted agenda, completely unsupported by evidence.

    Rob took ALL of the paper cut out men out of the homosexual classification and put them into the heterosexual classification with a motive and substantial lack of reliable evidence.

    I’m assuming that you’re referencing the scene in the video where Rob, presenting the results of a study by Dr. Carole Jenny at Denver Children’s Hospital, moved figures representing the fifty boys in the study who were molested into categories representing whether or not the individual(s) who molested each boy were gay or not (note: Rob’s categories were “Gay” and “Not Gay”, not “Homosexual” and “Heterosexual”).

    Rob categorized each according to their expressed adult sexual orientation (as exhibited by sexual behavior and/or self-identification); the evidence was (in 45/50 cases) the adult sexual behavior of the molesters and (in 4/50 cases) the complete lack of any evidence that they had ever had sex with another man and did not self-identify as gay. The one remaining case, which was not put in either category, remained ambiguous because there was no strong evidence as to whether the molester was gay or not. In short: there was very good evidence for classifying all but one molester as “Not Gay” (and not classifying the remaining molester); Rob did not do so arbitrarily.

    Regarding your reference to “the myth that gay men are more attracted to children than are straight men.”
    This wasn’t my contention. My contention is that Rob’s assertion of the opposite is unsubstantiated and self-serving and ignores the feminine component of many male homosexual relationships. (Which while you have accused me of “not substantiating” you have not denied exists, nor proven is absent in male pedophilia.)

    Rob did not assert that straight men are more attracted to children than gay men are. What Rob did assert — and substantiated with numerous studies — is that most men who abuse children (including most men who abuse boys) are either heterosexual or do not have an expressed adult sexual orientation (that is, that they are true pedophiles — people who are sexually fixated on children). I would assume that he ignored “the feminine component of many male homosexual relationships” because it was not cited as a motive for any of the child molesters in any of the studies cited (and, hence, was irrelevant to a discussion of the motivations of said child molesters). In contrast, adult male heterosexual abusers did claim attraction to the feminine characteristics, so reporting that motive was relevant to the discussion.

    As to the “feminine component of many male homosexual relationships”: you seem to assume that if one man in a same sex relationship has feminine characteristics, it must be those characteristics (rather than other, masculine qualities) to which his partner is attracted. The studies I referenced which looked at sexual dimorphism in facial attraction, pheremonal attraction, and they physiological differences between the brains of gay and straight men suggest otherwise.

    In other words, I don’t deny that some gay men in relationships are effeminate; however, I do deny (based on the studies I cited) that their partners are attracted primarily to the feminine characteristics rather than the masculine characteristics. In particular, the study I cited which Warren Throckmorton examined looked at sexual attraction and sexual response; the results of the study directly support Rob’s statements.

    Site all the sloppy science you want. I’ve been to Greenwhich Village. And as I have now stated plainly, know several gay couples.

    If there is any problem with the methodology, sampling, or conclusions of any of the studies I have cited (other than the original survey I posted with the caveat that the sampling was flawed), please point out said problems; otherwise, your accusations that the studies are “sloppy” seem trite at best.

    Furthermore, the personal experience of having “been to Greenwhich Village” and knowing “several gay couples” is an incredibly small and biased sample compare to multiple, population based and representative studies. Also, since you discounted my personal experience as a gay man as “hardly compelling“, I think it fair to discount your personal experience of knowing and having been around gay people as even less compelling. And you still have presented no evidence — only supposition and partial anecdotes followed by assertion — to support your claims regarding any femininity in gay relationships.

    Your vocabulary, while not unimpressive, does not elevate your logic or your evidence.

    While I appreciate the compliment, my vocabulary — except as the proper terminology can help to make a point more clear and concise — is, as you say, irrelevant to the conversation. However, you have yet to establish any flaw with any of the evidence I have presented (except, of course, the flaws in the original survey I posted –which I pointed out at the time I posted it).

  111. Patrick Hogan
    August 28th, 2011 at 01:02 | #111

    John Howard :
    @Patrick Hogan
    There is a colloquial use of “sex” of course, which refers to more than just sexual intercourse. The point was Lawrence had nothing to do with sexual intercourse.

    The point was, of course, to be derisive toward any sexual act other than coitus, particularly toward sex between two men. And my purpose in calling you out on it was to draw attention to your hostility and your willingness to make statements which are blatantly untrue to support it.

    Marriage IS a license to reproduce and should continue to be. No marriages should ever be prohibited from reproducing offspring using their own genes. Same-sex couples should be prohibited from reproducing with their own genes (which would require labs to create artificial gametes that represent no actual person).

    Currently, at least 5 states (Arizona, Illinois, Indiana, Utah, and Wisconsin) only allow certain couples to marry if they are incapable of reproducing using their own genes (first cousins). Thus, some married couples are prohibited from reproducing using their own genes. Meanwhile, reproduction outside of marriage is not prohibited. If some married couples are prohibited from procreating with their own genes, and unmarried couples are not prohibited from doing so, it would seem that marriage is not a license to procreate.

    Tell me where SCOTUS upheld a right to reproduce outside marriage or to decline to reproduce in marriage while not being grounds for divorce. I think you are reading outside the lines.

    In Roe v. Wade, SCOTUS held that the right to control whether or not one reproduces is covered under the right to privacy (and, hence, is a fundamental right); the court specifically included both married and unmarried couples in its ruling. In Griswold v. Connecticut, SCOTUS struck down laws prohibiting the sale of contraceptives to married couples, finding that laws prohibiting married couples from utilizing contraception violated the couples’ rights to privacy. In Eisenstadt v. Baird, SCOTUS ruled that unmarried couples also had the right to use artificial contraception. More recently, SCOTUS ruled in Turner v. Safley that couples have the right to marry even if they will not ever be able to have sex.

    As far as whether refusal to procreate could be considered grounds for divorce: since all states now offer no-fault divorce, anything at all can be considered grounds for divorce. However, in the states that allow for fault divorce, the American Bar Association lists the following reasons as being most common: (1) adultery, (2) physical cruelty, (3) mental cruelty, (4) attempted murder, (5) desertion, (6) habitual drunkenness, (7) use of addictive drugs, (8) insanity, (9) impotency (usually unknown to the partner at the time of marriage), and (10) infection of one’s spouse with venereal disease. It is worth noting that the closest reason to what you have suggested is impotency, usually with the caveat that it must have been unknown to the partner at the time of marriage (and, hence, it is typically considered a form of fraud on the part of the impotent partner).

    Lawrence affirmed that marriage is “about the right to have sexual intercourse,” at the very most essential dry bottom, while pointing out that it is of course about much more than just or simply that. But it sure affirmed that it is most essentially about the right to have sexual intercourse (and not sodomy, that was still a crime even for married couples).

    …I’m not sure what case you were attempting to reference, but Lawrence v. Texas both expressly avoided any ruling relating to marriage and explicitly upheld the right to private, consensual sex — including, in particular, anal and oral sex between unmarried men. The ruling stated:

    Lawrence v. Texas
    The present case … does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

    (Emphasis mine)

    In short: Lawrence said nothing at all remotely close to what you claimed. Perhaps you were thinking of a different case? Though, to be perfectly blunt: if it is not more recent than Lawrence (2003), it would be irrelevant to any discussion of whether there is a right to engage in consensual, private sex — and I’m using the “colloquial” definition here, including anal and oral sex between same sex adults.

  112. Patrick Hogan
    August 28th, 2011 at 02:31 | #112

    bman :

    Patrick Hogan: But if the non-immigrant refuses to consummate the marriage, the marriage is still considered valid.

    That presumes more than the clause requires.
    The words, “fraud on behalf of the immigrant” are key.

    Whether a marriage is considered a sham(“fake”, i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen refuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.

    Those words refer to whether “immigration fraud” was intended by one particular person, the immigrant.<p…
    You can’t take that “no” and conclude the marriage can’t be annulled due to lack of consummation.
    That would be a matter for family court, not immigration law.

    I never said — nor did I intend to imply, though I can see how what I wrote could give that impression — that the marriage could not be annulled, potentially (depending on the state, the wedding vows, and other circumstances) on the basis that one party refused to consummate the marriage. The point I was making is that the marriage is only considered invalid (for immigration purposes, as you point out) if the immigrant refuses to consummate it; non-consummation in and of itself does not nullify the marriage. Whether or not refusal could be used as grounds for nullification is entirely ancillary to the debate: the state still considers the marriage to be valid for the purposes of state law unless a suit is successfully prosecuted to annul the marriage.

    Furthermore, while refusal or inability to consummate a marriage can be grounds for an annulment or divorce, simple lack of consummation is not (the couple can marry, agree never to have sex, and still have their marriage considered valid). Since there is a social expectation of sex within marriage, and since many religious traditions include in the vows at the wedding ceremony implications that the couple will have sex (for example, Catholic weddings include a statement from the couple that they will accept children lovingly from God), refusal to consummate the marriage after declaring such an intent is seen as fraud.

    One reason the regulation was stricken was, “….most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.”

    …why did the court view future consummation as a reason to strike down the regulation unless marriage is legally recognized as a sexual relationship between a man and woman?

    The “expectation of future consummation” was included in a list of “important attributes of marriage [which] remain, however, after taking into account the limitations imposed by prison life” — not a list of requirements or legal expectations of marriage. Another reason in the list was that “many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith”. Are you suggesting that there is a legal expectation that marriage be an exercise of religious faith? If not, why would inclusion of one item (consummation) in the list constitute evidence for legal expectation but inclusion of another item (religious faith) not?

    That raises the question of why the court said, “…most inmate marriages are formed in the expectation that they ultimately will be fully consummated.”

    Which is precisely the point. Court cases are typically issued so as to be as narrow as possible. Since SCOTUS left its ruling at “most” inmate marriage — showing that the court recognized that some marriages would not be consummated — and did not carve out an exemption to allow suspension of marriage rights on the grounds that the marriage could not be consummated, it is clear that SCOTUS does not consider consummation to be a legal requirement; the inclusion of the potential for consummation in the enumeration of reasons which might motivate an inmate to marry recognizes a social expectation of consummation, but nothing more.

    And why did the court use the word “consummate” which means “to complete,” unless the court viewed sex as an act that “completes” marriage?

    In turn, how could sex “complete” marriage if marriage is not a sexual relationship?

    I would tend to assume that the court used the word “consummate” because it is understood to refer to first having sex after being married. The fact of the matter remains that the court recognized circumstances exist in which inmates would be unable to consummate a marriage and still recognized such inmates’ rights to marry — denying that consummation is a legal necessity.

    I do not wish to imply that I do not consider marriage to generally involve a sexual relationship; as I’ve stated several times, there is a general social expectation of sex within marriage (also, of love, permanence, emotional support, shared bank accounts, shared surname, etc., none of which are presumed under the law). My contention is only that there is no legal requirement of such.

    Likewise, SCOTUS recognized a social expectation of sex within marriage by including the possibility of eventual consummation in its enumeration of reasons prison inmates might wish to marry, but denied any legal requirement of such given the specific wording of its reasoning, as you noted above. It is not inconsistent for the court to refer to sex as “completing” a marriage in a social sense while holding that, in a legal sense, such completion is not necessary.

    Anyway, the Turner court also affirmed a previous ruling where it upheld a New York Law that denied marriage to prisoners with life sentences:

    That case involved a prohibition on marriage only for inmates sentenced to life imprisonment; and, importantly, denial of the right was part of the punishment for crime

    (Emphasis mine)

    As the court noted, the NY case differed in that the denial of the right to marriage was part of the punishment for the crime; denial of marriage was not in any way predicated upon the fact that marriage to an inmate imprisoned for life could not be consummated.

    Why it said “most” is unclear. Possibly, it meant that states can either allow or deny marriage to prisoners with a life sentence. In other words, it seems Turner did not make that a federal issue, but left it to the right of each state how it regulated that.

    Turner does seem to allow states to deny marriage to prisoners with a life sentence — if that denial is part of the punishment or is rationally related to some other government interest (such as the security of the prison). If the court had wished to legally expect consummation within marriage, one would expect it to have included the impossibility of consummation in the opinion upholding the NY law; however, such reasoning is conspicuously absent and flatly contradicted by the court’s implication that not all marriages need be able to be consummated.

  113. Patrick Hogan
    August 28th, 2011 at 04:13 | #113

    bman :

    bman: Was the phrase used by the court to mean “still open to litigation” when applied to “prostitution,” “public conduct,” “consent,” and such? Since it obviously was not used that way for those things, the last instance quoted does not require that meaning either.
    Patrick Hogan: The court did not consider cases of prostitution, public conduct or non-consent, so, yes, all are still open to litigation.

    I was not asking if those things would be “open to litigation.”
    Rather, did the court intend the phrase “does not involve” to be “other words” for “still open to litigation?”
    That seems highly unlikely.

    If you’re asking “Did the court mean for the words ‘does not involve’ to be literally interchangeable with the words ‘open to litigation’”, I would agree that such an intent is unlikely.

    If, however, you’re asking: Did the court, in specifically mentioning particular topics on which it was not ruling mean to leave those topics open to further litigation — whether at the level of the US Supreme Court, state supreme courts, or the various appeals courts — then the answer is yes — I find it highly likely the the court intended to make clear that it was not ruling on any of the topics which it pointed out that the current case “does not involve.”

    Also, the phrase, “still open to litigation” would not refer to court litigation in general, but to such cases as would likely reach the Supreme Court.

    This would seem to me to be the crux of our disagreement. I would consider any topic on which a lawsuit is heard — rather than being dismissed on the basis of prior court ruling — to be one which is “open to litigation”.

    However, given that State v. Limon was before the court at the time of Lawrence and was not resolved when the court ruled on Lawrence, and given that Justice Scalia in particular foresaw that lawsuits challenging the lack of government recognition of same sex marriages would be filed and would reach SCOTUS…Well, it would seem that at least two of the examples (government recognition and cases involving minors) meet even the inexplicably stringent requirement that a case be “likely to reach the Supreme Court” you ascribe to “a case being “open to litigation”.

    Thus, it seems to me the phrase “does not involve” neither affirms or denies the idea of future litigation by the Supreme Court.

    Well, at least we agree on that much. I would also interpret a lack of affirmation or denial of future litigation as being “open to litigation” (i.e.: willing to consider it), which seems to be the source of our disagreement on this issue.

  114. Anne
    August 28th, 2011 at 14:01 | #114

    @Sean
    “A partner to a marriage can expect sex; the government, however, cannot.”

    No, but they can and do grant the license based on the spouses’ rights (obligation) to sex. Which was of course, the point of the entire discussion.

  115. Deb
    August 29th, 2011 at 06:51 | #115

    Sean :
    “My good friend is being sued for damages for “lack of marital services”.”
    If she made a commitment to provide such services, and then reneged, she may be liable. A partner to a marriage can expect sex; the government, however, cannot.

    Sean, are you not the one screaming “traditional marriage includes marital rape” at every chance you get? Are you not defending what you say you oppose in the quote above?

  116. Patrick Hogan
    August 29th, 2011 at 08:43 | #116

    Anne :
    @Sean
    “A partner to a marriage can expect sex; the government, however, cannot.”
    No, but they can and do grant the license based on the spouses’ rights (obligation) to sex. Which was of course, the point of the entire discussion.

    Where in any modern US marriage law is there an obligation or an enumerated right to have sex? To be clear: obviously a married couple has a right to have sex; my contention is that the right exists independent of marriage.

    I have pointed to several cases in which the US government allows couples to marry despite there being no way for the couples to ever have sex; clearly, in any such circumstances, the marriage license is not granted base on any obligation to have sex.

    Furthermore, with the repeal of “marital rape exemptions” (which stated, in US law, in some states as recently as 20 years ago, that a husband could not legally rape his wife since she had, by marrying him, consented to sex), it has become clear that the law recognizes the right of either spouse to refuse sex (neither spouse has a right to sex with the other absent consent, and neither spouse has an obligation to have sex).

  117. August 29th, 2011 at 11:44 | #117

    @Patrick Hogan
    The license is not just to sexual intercourse but to conception of offspring. You say “To be clear: obviously a married couple has a right to have sex” and yes, you’re right it is obvious, everyone understands that “has sex together” is the meaning of “married.’ It is so obvious that it isn’t enumerated in marriage law. And, everyone knows that a married couple has a right to procreate offspring, the right to have sexual intercourse is a right to have procreative sex and bear offspring of the marriage, from the couple’s own genes.

    Eugenicists since Margaret Sanger have been trying to separate procreation rights (which they called “parenting” rights) can be separated from marriage, so they could sterilize unfit marriages and prevent them from procreating, but they switched to “crypto-eugenics” after WWII and decided to use marriage’s conception rights for their temporary benefit, in order to pioneer IVF and establish the idea of eugenic sperm and egg donation as a “right” of marriage, even though that is total BS, those are not rights of marriage, only natural sexual intercourse is. But now that they have established those technologies, they are looking again at stripping procreation rights from marriage, by equating natural sex to using donor gametes or genetically engineered gametes, so that they right to procreate is satisfied by eugenic alternatives and the right to have natural children is gradually eroded and forgotten.

  118. bman
    August 29th, 2011 at 16:56 | #118

    Patrick Hogan :
    Where in any modern US marriage law is there an obligation or an enumerated right to have sex? To be clear: obviously a married couple has a right to have sex; my contention is that the right exists independent of marriage.

    When referring to “US marriage law” keep in mind that marriage law can be different for different states. Its not the federal government that sets marriage law per se. Although polygamy is prohibited by federal law, its state law that decides how marriage is viewed for a state, generally speaking.

    The universal, or nearly universal, principles that apply across the states can be labeled “US Marriage law” in a collective sense, though some confusion can result from that term since its really about state laws.

    You contend the right to have sex exists independent of marriage. It seems more accurate, however, to say sex between non-married persons is currently treated as invisible to the state, and the state sees a right to privacy rather than a sexual relationship.

    By contrast, marriage is formally recognized by the state as a sexual relationship between a man a woman. Its a sexual relationship that is both visible to the state and formally approved by the state and the people.

    The people, however do not regard men having sex with men as fit for public endorsement. Its their decision what type of sexual relationship they want to formally promote as a matter of public policy and what kind they do not wish to recognize beyond the right to privacy.

    The principle is much the same as how the state deals with smoking. It forbids cigarette ads, but permits private smoking.

    The rights of gays are protected by privacy law, but they do not have a right to to impose public endorsement of their sexual relationship on the people. Brian Raum’s article in the current Scotusblog discussion makes the point.

    ….the central holding in Lawrence is perfectly reasonable because the law need not promote everything it protects. The Constitution contains an equal protection clause, not an equal promotion clause. We see this dynamic at work in our First Amendment jurisprudence. Freedom of speech is a fundamental right and protects our right to espouse ideas that may be offensive and even antithetical to our American institutions. But the government need not endorse or promote those ideas. For example, while the law protects one’s right to tout the virtues of communism, our law need not and does not promote that sentiment.article link

    And so, “the law need not promote everything it protects” is a key principle in this debate.

    The right of the people to promote a certain form of marriage is also seen by the fact alien forms of marriage from other countries have no legal right to be recognized here.

    Most voters would have no trouble understanding why the people have a right to not promote alien forms of marriage at law.

    Same sex marriage, however, is essentially an alien form of marriage recognized by some foreign countries (Canada etc.) which the American people have a right to reject just as they do other alien forms of marriage.

    I have pointed to several cases in which the US government allows couples to marry despite there being no way for the couples to ever have sex; clearly, in any such circumstances, the marriage license is not granted base on any obligation to have sex.

    The right to marital sex can be distinct from the enforcement of that right. Enforcement may take a limited form, such as being grounds for annulment or divorce if one of the parties brings a law suit on that basis.

    The state might not prevent a voidable marriage from occurring, but it can still void the marriage in family court if one of the parties files suit on that basis.

    In that way, the state would still enforce the marital right to have sex.

    As a side note, the meaning of the word adultery further proves that marriage is a sexual relationship formally recognized at law. Two unmarried people, for example, are incapable of adultery. It takes a married person to have sex outside of marriage for adultery to exist.

    In turn, the very term adultery implies that marriage comes with a moral and legal obligation to have sex only with one’s partner, and a duty for each partner to provide for the sexual needs of the other partner, and no one else.

    ….it has become clear that the law recognizes the right of either spouse to refuse sex (neither spouse has a right to sex with the other absent consent, and neither spouse has an obligation to have sex).

    This, too, can be be viewed as as distinction between the right to marital sex and how its enforced.

    The partner can file for dissolution of the marriage on the grounds the other partner was refusing to perform the duties of marriage.

    Thus, there is an enforcement option, even though coerced martial sex is not an option.

  119. bman
    August 29th, 2011 at 17:03 | #119

    Note: When two unmarried people have sex its called fornication. The term adultery can only apply when sex occurs between a married person and an unmarried person.

  120. Patrick Hogan
    August 29th, 2011 at 21:28 | #120

    John Howard :
    @Patrick Hogan
    The license is not just to sexual intercourse but to conception of offspring. You say “To be clear: obviously a married couple has a right to have sex” and yes, you’re right it is obvious, everyone understands that “has sex together” is the meaning of “married.’

    Not everyone who is married has sex; there are, in fact some married couples who one would assume are not having sex — such as couples where one or both individuals are paralyzed from the waist down. And I’m surprised to hear “marriage means ‘has sex together’” on a website run primarily by Catholics — or doesn’t the Church still teach the perpetual virginity of Mary?

    Regardless, when I think of a married couple, I tend to think that they live together, that they support each other, that they love each other — but none of these things are required (or licensed) by law — though public recognition of such support is certainly bound up in marriage. Generally speaking, I think nothing of their sex lives, though I would tend to assume that any romantic couple living together — married or not — is probably sleeping together, while I would tend to doubt whether couples that explicitly live apart — married or not — are sleeping together. Based on my perceptions — and based on the scandal my Catholic relatives felt when one of my cousins moved in with her fiance — it would seem that cohabitation rather than marriage carries the presumption of sex; marriage is typically correlated with cohabitation, so that might explain the conflation of the two.

    It is so obvious that it isn’t enumerated in marriage law. And, everyone knows that a married couple has a right to procreate offspring, the right to have sexual intercourse is a right to have procreative sex and bear offspring of the marriage, from the couple’s own genes.

    “It is so obvious” and “everyone knows” — but you can’t point to any law that supports your claim. Which really makes it more of a social than a legal tradition. Kind of like how it’s “just so obvious” and “everyone knows” that you get paid vacation on Christmas, but employers in the US aren’t actually required to give you the day off. And you blatantly ignored the cases I pointed out which belie that assumption — cases which prove that not all married couples are allowed to procreate with their own genes, and cases in which legally married couples can be legally prevented from ever having sex.

    Eugenicists since Margaret Sanger have been trying to separate procreation rights (which they called “parenting” rights) can be separated from marriage, so they could sterilize unfit marriages and prevent them from procreating, but they switched to “crypto-eugenics” after WWII and decided to use marriage’s conception rights for their temporary benefit, in order to pioneer IVF and establish the idea of eugenic sperm and egg donation as a “right” of marriage, even though that is total BS, those are not rights of marriage, only natural sexual intercourse is. But now that they have established those technologies, they are looking again at stripping procreation rights from marriage, by equating natural sex to using donor gametes or genetically engineered gametes, so that they right to procreate is satisfied by eugenic alternatives and the right to have natural children is gradually eroded and forgotten.

    I really don’t understand what point you’re trying to make with this. It’s a nice conspiracy but, lacking any evidence, that’s all it is; further, I fail to see how it relates at all to the discussion at hand (unless you’re trying to accuse me of eugenics…?).

  121. Patrick Hogan
    August 29th, 2011 at 23:42 | #121

    bman :
    When referring to “US marriage law” keep in mind that marriage law can be different for different states. Its not the federal government that sets marriage law per se. Although polygamy is prohibited by federal law, its state law that decides how marriage is viewed for a state, generally speaking.

    My apologies if I was unclear: I was referring to any law regarding marriage currently on the books in the US, at the state or federal level. Really, for the claim you’re making regarding legal expectations of marriage in the US in general, it would have to be true for at least a preponderance of the states and/or at the federal level, but I’d be interested in hearing of any state or federal law which supports it.

    The universal, or nearly universal, principles that apply across the states can be labeled “US Marriage law” in a collective sense, though some confusion can result from that term since its really about state laws.

    In general, I would agree that the statutes which are identical or substantially similar across a majority of the states, particularly when combined with applicable federal laws and constitutional restrictions (such as the equal protection and due process clauses) could be considered the code of US marriage law. But I was really just asking if there are any state or federal laws — whether they could be considered to be widely enough supported so as to constitute US marriage law or not — which support your contention that marriage confers an obligation or right to sex.

    You contend the right to have sex exists independent of marriage. It seems more accurate, however, to say sex between non-married persons is currently treated as invisible to the state, and the state sees a right to privacy rather than a sexual relationship.

    Actually, that’s not what I contend. So far as the government (state or federal) is concerned, the right to sex for any couple is covered under the right to privacy. The right to marriage (which is also a fundamental right) is a legally distinct right. Although society generally presumes that most married couples will exercise their right to engage in private, consensual sex, they are not required to do so — nor is the right to engage in private, consensual sex contingent upon the right to marriage.

    Or, to put it in more philosophical terms: marriage is not a necessary condition for private, consensual sex, nor is private, consensual sex a necessary condition for marriage. While the two are no doubt highly correlated, there is no explicit legal link between them. In short: sex between married people is also generally invisible to the state (the exception, of course, being if a breach of contract — adultery — occurs; I do not believe adultery could be considered a breach of contract in a marriage that did not include an oral or written vow of fidelity, but I’d be interested if anyone has an example to prove me wrong).

    By contrast, marriage is formally recognized by the state as a sexual relationship between a man a woman. Its a sexual relationship that is both visible to the state and formally approved by the state and the people.

    Marriage is a formally recognized relationship that society tends to presume is sexual; however, nothing in the law requires that marriage be a sexual relationship. I have given examples of times that the state has acknowledged a right to marry even when sex cannot take place; in those cases, clearly, the relationship was recognized without any sexual component.

    The people, however do not regard men having sex with men as fit for public endorsement. Its their decision what type of sexual relationship they want to formally promote as a matter of public policy and what kind they do not wish to recognize beyond the right to privacy.

    Marriage, rather than being a societal “endorsement,” is a fundamental right which cannot be abridged without due process of law. SCOTUS has ruled marriage to be a fundamental right no fewer than 14 separate times. The court has particularly done so in upholding the rights of prisoners to marry (the oft-aforementioned Turner v. Safley); surely you don’t mean to suggest that society chooses to endorse the marriages of serial killers and rapists who marry to receive government benefits (the fourth reason identified by SCOTUS in Turner as why an individual in prison without conjugal visits might wish to marry).

    Could states, in deciding what type of relationships they want to formally recognize, prevent cohabitating couples from marrying? After all, statistics show that couples who cohabitate before marriage are more likely to divorce. Could the state prohibit couples from marrying if both individuals intended to continue with a career? That would ensure that any children born to the couple would have a stay at home parent. Could the state impose education restrictions on marriage? Statistically speaking, people with higher education upon entering marriage are less likely to divorce. Could the state prohibit a man and a woman from marrying if the woman has had an abortion, or if she’s had a non-medically necessary hysterectomy, or if the man has had a non-medically necessary vasectomy (for surely none of these is more of an invasion of privacy than the blood tests required by some states to meet consanguinity requirements)? That would strengthen the link between marriage and procreation by excluding those who have intentionally eliminated their abilities to procreate.

    Of course, each of the laws I facetiously suggested above would be struck down, despite the fact that there is a legitimate government interest furthered in each and every case. They would be struck down under the review of strict scrutiny, required for cases restricting the right to marry because marriage is a fundamental right. Apparently, states do not, in actuality, have much control over which relationships to recognize through marriage — exactly because marriage is not a state endorsement but a fundamental right.

    The principle is much the same as how the state deals with smoking. It forbids cigarette ads, but permits private smoking.

    Smoking is not a fundamental right; marriage is.

    The rights of gays are protected by privacy law, but they do not have a right to to impose public endorsement of their sexual relationship on the people. Brian Raum’s article in the current Scotusblog discussion makes the point.

    ….the central holding in Lawrence is perfectly reasonable because the law need not promote everything it protects. The Constitution contains an equal protection clause, not an equal promotion clause. We see this dynamic at work in our First Amendment jurisprudence. Freedom of speech is a fundamental right and protects our right to espouse ideas that may be offensive and even antithetical to our American institutions. But the government need not endorse or promote those ideas. For example, while the law protects one’s right to tout the virtues of communism, our law need not and does not promote that sentiment.article link

    And so, “the law need not promote everything it protects” is a key principle in this debate.

    Indeed, the law need not promote everything it protects. However, marriage — rather than being an endorsement — is a fundamental right. It is itself protected under the law. If you’d like, I can start pulling up examples of legal marriages that I highly doubt society as a whole or the state in particular would ever endorse; if I recall correctly, there was a 54 year old man who married a 14 year old girl (with her parents’ permission, so it was perfectly legal) a few months ago…

    When it comes to actually promoting marriages, though, the state can certainly choose to promote some marriages over others — there could be additional legal incentives to stay together and/or have children, for example — but the end must be rationally connected to the means, and the state must do so without infringing upon the fundamental right to marry.

    The right of the people to promote a certain form of marriage is also seen by the fact alien forms of marriage from other countries have no legal right to be recognized here.

    Actually, you have it backwards: as a courtesy (and, generally, as part of a reciprocal relationship), states typically recognize institutions which are substantially similar in structure and in law to our own institutions of marriage. This does not constitute an endorsement of those substantially similar legal structures; merely recognition of the parallels. Unless you think that American recognition of marriages performed in countries that allow child marriages constitutes endorsement of child marriage?

    Most voters would have no trouble understanding why the people have a right to not promote alien forms of marriage at law.
    Same sex marriage, however, is essentially an alien form of marriage recognized by some foreign countries (Canada etc.) …

    And Massachusetts. And Vermont. And New York. And Iowa. And Connecticut. And New Hampshire. And Washington DC.

    … which the American people have a right to reject just as they do other alien forms of marriage.

    Except that our Constitution stipulates that similarly situated people be treated similarly under the law. If I am in a relationship and the two of us wish to marry, we should have exactly the same legal rights as any other couple which wishes to marry. Since marriage does not require procreation (or even the ability or desire to procreate), and since men and women are equal under the law, there is no legally substantial difference between two men who wish to marry, two women who wish to marry, and a man and a woman who wish to marry.

    I have pointed to several cases in which the US government allows couples to marry despite there being no way for the couples to ever have sex; clearly, in any such circumstances, the marriage license is not granted base on any obligation to have sex.

    The right to marital sex can be distinct from the enforcement of that right.

    “Enforcement of that right?” I wasn’t aware that one could ever be forced to exercise a right…That sounds much more like a responsibility or a duty than a right.

    Enforcement may take a limited form, such as being grounds for annulment or divorce if one of the parties brings a law suit on that basis.
    The state might not prevent a voidable marriage from occurring, but it can still void the marriage in family court if one of the parties files suit on that basis.
    In that way, the state would still enforce the marital right to have sex.

    I’m still puzzling over how one might go about enforcing a right, but what you’re actually saying seems to be that the couples must agree on whether or not to have sex, or at least not disagree so much as to file suit over it, for a marriage to be valid. From your statements, it would seem that the state has no interest in whether or not sex actually takes place — but the state may, if one of the parties complains about it, annul the marriage if the couple disagrees on something so fundamental as whether or not they will have sex.

    I should also note that the state may annul a marriage if duress was involved (coercion of either party); however, I haven’t seen anyone argue that freedom from duress is an “enforceable right” of marriage (on the contrary: many of my married male friends would argue — good naturedly, of course — that duress is an essential and lasting feature of being married to their wives).

    As a side note, the meaning of the word adultery further proves that marriage is a sexual relationship formally recognized at law. Two unmarried people, for example, are incapable of adultery. It takes a married person to have sex outside of marriage for adultery to exist.
    In turn, the very term adultery implies that marriage comes with a moral and legal obligation to have sex only with one’s partner, and a duty for each partner to provide for the sexual needs of the other partner, and no one else.

    Since marriage typically includes an oral or written (prenup, for example) vow of fidelity: I would disagree. Unless you can show that an individual in an open marriage could still successfully prosecute his or her spouse for having sex outside the marriage, it would seem that fidelity is a strongly correlated contractual term of marriage — not a requisite feature of marriage itself. Furthermore, as with refusal to have sex, adultery is only grounds for divorce if a party complains about it. You could know that your neighbors down the street are continuously cheating on each other and report every sordid instance to your local courthouse, but the marriage will not be dissolved unless one of the parties to it files suit — no matter how much extramarital sex is taking place.

    ….it has become clear that the law recognizes the right of either spouse to refuse sex (neither spouse has a right to sex with the other absent consent, and neither spouse has an obligation to have sex).

    This, too, can be be viewed as as distinction between the right to marital sex and how its enforced.

    And I still have no idea how one enforces a right. I do know how one enforces the terms of a contract — namely, if there is a violation of the terms, one files suit to terminate the contract and, if appropriate, collect damages. Kind of similar — and by “kind of”, I mean “exactly” — to how one files for divorce if the terms of a marriage contract are violated.

    The partner can file for dissolution of the marriage on the grounds the other partner was refusing to perform the duties of marriage. </p

    So now sex is also a marital duty, not just an enforceable right?

    Thus, there is an enforcement option, even though coerced martial sex is not an option.

    Still sounds an awful lot like enforcing a contract rather than upholding a right. When a right is violated, you sue to be allowed to exercise that right; when the terms of a contract are violated, you sue for dissolution of the contract and collection of applicable damages. For example: when the government prohibits a paper from printing an article, the paper sues to be able to print it; when a company tries to charge extra for a service, the customer sues to either enforce the terms of the service or terminate the contract and collect damages caused by the service being delayed or canceled. Which one sounds like dissolution of a marriage on the basis of refusal to have sex?

  122. Anne
    August 30th, 2011 at 06:30 | #122

    @Patrick Hogan
    “If your criticism is of the social sciences and of psychology in general, then I’m afraid we’ve reached an impasse in any discussion of sexual attraction;”

    Science doesn’t prove anything. Ever. It draws conclusions based on observations. The conclusion is designed to be the result of observation and research, not the driving force. The homosexual community and it’s proponents have an agenda which is driving the process and corrupting the science. I would refer you to an interesting discussion on another thread:

    Intelligent Replies to Idiotic Comments, Part 2, (Gasp!!!), where bman in post #16 cites an interview: “Dr. Cummings, former president of the APA has given us an insider view……
    “Dr. C: The APA has permitted political correctness to triumph over science, clinical knowledge and professional integrity. The public can no longer trust organized psychology to speak from evidence rather than from what it regards to be politically correct.””

    On another note, I am amazed by the consistency of defenders of homosexuality and same sex marriage to point to the highly subjective “social sciences and psychology” to substantiate their position when they are so lighning quick to dismiss the tangible, physical sciences of biology and anatomy. Was it you in a recent post when presented with the most basic biological conept who responded with rather flippant disregard that “penis A into vagina B” was insignificant with regard to discussion of marriage and pupose of human relations?

    The observations of the biological and anatomical conditions of the human species point to a very clear conclusion. That is true science.

    If we have reached and “impass in discussion” because what you claim to be evidential is less than true science, then, by all means ‘pick up your marbles and go’.

  123. Anne
    August 30th, 2011 at 07:25 | #123

    “an “impasse””

  124. bman
    August 30th, 2011 at 16:30 | #124

    @Patrick Hogan

    Phil Hogan: …if a breach of contract — adultery — occurs; I do not believe adultery could be considered a breach of contract in a marriage that did not include an oral or written vow of fidelity..

    Phil Hogan on the same point: Since marriage typically includes an oral or written (prenup, for example) vow of fidelity: I would disagree. Unless you can show that an individual in an open marriage could still successfully prosecute his or her spouse for having sex outside the marriage, it would seem that fidelity is a strongly correlated contractual term of marriage — not a requisite feature of marriage itself.

    These two excerpts are actually solid arguments against your view.

    Regarding the open marriage agreement, a brief search on the words “open marriage” and “court” retrieved this comment from Kiplinger’s Personal Finance Apr 1987:

    “Couples can put anything they want into an agreement…The courts..will not enforce provisions that violate public policy, such as one that mandates a so-called open marriage.”

    Thus, adultery is considered grounds for divorce regardless of pre-nuptials.

    In turn, that means marriage is “legally” a sexual contract, and a monogamous sexual contract at that. Its not just a matter of “social expectation” or “private” contract.

    The legal philosophy behind your two excerpts bases marriage on a “private contract theory.”

    In reality, however, marriage is based on a “social contract theory” where society sets the minimum terms of that contract that are in its best interest.

    This explained quite well in the case MAYNARD V. HILL, 125 U. S. 190 (1888). Selected excerpts follow:

    Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation….

    Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution….

    It is also to be observed that while marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract. The consent of the parties is, of course, essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.

    This view is well expressed by the Supreme Court of Maine in Adams v. Palmer, 51 Me. 481, 483. Said that court, speaking by Chief Justice Appleton:

    “When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the state, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not of contract. It was a contract that the relation should be established, but, being established, the power of the parties as to its extent or duration is at an end. Their rights under it are determined by the will of the sovereign, as evidenced by law. They can neither be modified nor changed by any agreement of parties. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other.”

    And again:

    “It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”

    In the second case, the Supreme Court of Rhode Island said that

    “….marriage, in the sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make. When formed, this relation is no more a contract than ‘fatherhood’ or ‘sonship’ is a contract.”

    And so marriage is about a social contract that has more to do “with the morals and civilization of a people than any other institution.” A private contract between individuals does not determine the morality that marriage represents but the society does that.

    It also follows, since society has a right to make adultery a breach of the marriage contract, even if a prenuptial agreement was made to the contrary, society also has the right to define the sexual morality surrounding marriage.

    It means marriage is very much about the sexual morality of the community as it is the relationship of the two partners.

  125. bman
    August 30th, 2011 at 16:32 | #125

    I just noticed I used the name Phil instead of Patrick. My apologies on that.

  126. Patrick Hogan
    August 30th, 2011 at 23:33 | #126

    Anne :
    @Patrick Hogan
    “If your criticism is of the social sciences and of psychology in general, then I’m afraid we’ve reached an impasse in any discussion of sexual attraction;”
    Science doesn’t prove anything. Ever. It draws conclusions based on observations.

    That would rather depend on how strictly one defines proof: to paraphrase Stephen Jay Gould, most people would accept that something is “proven” when it is “confirmed to such an extent that it would seem perverse to withhold provisional assent.” His example was that it has been “proven” that apples fall down, not up. Science certainly can (and does) “prove” things to that extent. But if by “prove” you mean: to know to such a certainty that there can never be any doubt or reason to revise one’s theory, then, no — science doesn’t “prove” anything. But that’s really a rather more abstract definition of “prove” than I think most people would use.

    But you are correct that science observes a condition — typically by carefully controlling some aspects while allowing others to vary — and draws a conclusion about that condition. However, your statement that any number of scientific studies are “just science, not math” would seem to imply a basic mistrust of scientific conclusions — particularly since you offered no specific criticism of the studies in question. When performed correctly (when the methodology allows repeatability and relative isolation of particular variables), the conclusions drawn by science tend to be highly reliable.

    The conclusion is designed to be the result of observation and research, not the driving force.

    Again, this is entirely correct. Conducting an experiment to reach a predetermined conclusion typically results in poor methodology and/or poor reasoning.

    The homosexual community and it’s proponents have an agenda which is driving the process and corrupting the science.

    If that is true of the studies I cited, then there must be some flaw in the methodology, the sampling or the reasoning used. For whatever reason, though, I can’t seem to discover the flaw — would you care to point it out?

    I would refer you to an interesting discussion on another thread:
    Intelligent Replies to Idiotic Comments, Part 2, (Gasp!!!), where bman in post #16 cites an interview: “Dr. Cummings, former president of the APA has given us an insider view……
    “Dr. C: The APA has permitted political correctness to triumph over science, clinical knowledge and professional integrity. The public can no longer trust organized psychology to speak from evidence rather than from what it regards to be politically correct.””

    Let’s see if we can put Cummings’ statements in context:

    NARTH interview with Cummings:My experience has demonstrated that there are as many different kinds of homosexuals as there are heterosexuals. Relegating all same sex-attraction as an unchangeable–an oppressed group akin to African-Americans and other minorities–distorts reality. And past attempts to make sexual reorientation therapy “unethical” violates patient choice and makes the APA the de facto determiner of therapeutic goals.

    Warren Throckmorton on Cummings:Nick Cummings is a mentor to me and a good friend. I have his book and have interviewed him several times and written about him in the national press. One of my great puzzles is that Nick has not written against reparative therapy. I know he believes that therapy can assist a small number to alter sexuality (about 13% from the numbers he gave me) but he does not think that reparative drive theory explains homosexuality in general. Like Nick I think a small percentage of men and women who engage in homosexual behavior are basically straight or bisexual and therapy may help them realize a more heterosexual adjustment.

    From the above two quotes (as well as the rest of the interview that NARTH conducted with Cummings), it is clear that Cummings’ criticism concerned the APA’s complete rejection of sexual orientation change therapy. This is further substantiated from another of Cummings’ statements presented by Dr. Throckmorton:

    Cummings said:Given the state of research, the APA should not reject the possibility that sexual orientation might be flexible for some nor should those who are opposed to homosexuality contend that all gays can or should try to change their attractions. Therapists should be prepared to work within the viewpoint of their clients, even if that means clients desire to align their sexual feelings with their deeply held beliefs.

    It is clear that Cummings took issue with a single, particular position of the APA and found not that it was necessarily even incorrect, but that the APA was unreasonably intractable concerning the position — and that the intractability was due (at least in part) to political correctness (elsewhere, he also indicated that the isolated and rather self-promoting nature of the professional organization also contributed). Undoubtedly Cummings had concerns that other issues were also being obfuscated out of political motivations, but this is the only one he cited.

    I should note a few things in quoting Cummings. First, that Cummings, in his report that ~13% of those who sought therapy specifically with regard to their sexual orientation were able to effectively change said orientation, qualified as “successfully changed” anyone who managed to live as a heterosexual. No attempt — such as an MRI scan — was made to measure actual attraction, nor did there appear to be long-term follow up on those who changed (thus, individuals such as George Rekers would have counted as “successfully changed”).

    Second, that Cummings specifically did not state that all or even most gays could change their sexual orientation; rather, he contended that the APA did not have enough evidence to reject the claims of those who claimed to have changed, so it might be possible for a minority of people engaging in same sex behavior to adapt to heterosexual behavior.

    Third, that these statements were made some years — and a great deal of research — ago. I searched for more recent public statements by Cummings, but I did not find anything indicating his current position regarding attempts to change sexual orientation (if anyone knows of a more recent statement, I would be very interested in reading it).

    Last, I would note that Cummings’ opinion is that: his opinion. There is good reason to respect his opinion — he has demonstrated professionalism, dedication to truth and a great deal of personal integrity throughout his career — but it is still only one man’s opinion. It certainly is reason to critically examine statements made by the APA (or any other organization, for that matter), but it is not reason to reject all information from the APA out of hand. And it should be noted that his opinion was of the APA’s message — not necessarily of individual reports published through the APA, much less of every scientist and researcher working for the APA. Oh — and it’s probably worth pointing out that none of the studies I cited was published by, for or through the APA.

    To the point: if the studies I cited were flawed, point out how. I’m not asking for a point by point refutation in a peer-reviewed journal; all I’m asking is that you point to any part of the methodology which is flawed, any way in which the conclusions are unsupported by the evidence, any way in which the evidence is contradicted by known science, or any way in which the studies are invalid. In short: if the studies are wrong, give me some reason to doubt them; simply accusing the authors of bias is lazy at best, if not downright anti-intellectual.

    On another note, I am amazed by the consistency of defenders of homosexuality and same sex marriage to point to the highly subjective “social sciences and psychology” to substantiate their position when they are so lighning quick to dismiss the tangible, physical sciences of biology and anatomy.

    What “tangible, physical sciences of biology and anatomy” have any “defenders of homosexuality” denied? At least two of the studies I cited specifically examined measurable, physical — not psychological — aspects of sexual attraction. The fact remains, though, that “tangible, physical sciences” are insufficiently developed to explain the full range of human behavior; statistical samplings, using carefully controlled and repeatable methodology, are often the most capable tools at hand.

    Was it you in a recent post when presented with the most basic biological conept who responded with rather flippant disregard that “penis A into vagina B” was insignificant with regard to discussion of marriage and pupose of human relations?

    No. The closest I have come to any statement of the sort was a flippant response to a post which asserted that Lawrence v. Texas had nothing to do with sex; I flippantly responded that while the author of said post might only consider an unprotected penis in a vagina to be sex, neither US law nor the English language ascribed to so narrow a definition. I would contend that any discussion of marriage and human relationships which confines itself to a discussion of heterosexual vaginal intercourse is myopic, but I wouldn’t argue that heterosexual vaginal intercourse is any less significant than any other kind of sex.

    The observations of the biological and anatomical conditions of the human species point to a very clear conclusion. That is true science.

    And what conclusion would that be, precisely? I could guess, but I’d rather not make any unnecessary assumptions.

    I have offered evidence that gay men are physically different than straight men — with regard to the physical structure of the brain, with regard to pheremonal response, and with regard to physiological and psychological measures of attraction, but somehow I doubt that “homosexuality is a physical reality and is perfectly natural” is the “clear conclusion” you’re trying to draw.

    You have not offered any evidence to contradict said studies, nor have you pointed to any flaw in the methodology, sampling or conclusions of any one of the studies (in fact, with regard to the studies of “physical, tangible” evidence, you have offered no comment whatsoever; with regard to the studies using sociological/psychological techniques, your only response has been to accuse the authors of bias without pointing to any flaw in the studies themselves).

    If we have reached and “impass in discussion” because what you claim to be evidential is less than true science, then, by all means ‘pick up your marbles and go’.

    Ah. So we’ve gone from “It’s not math, just science” to “science doesn’t prove anything” to “what you claim to be evidential is less than true science” — all without offering any concrete criticism of any study I’ve cited (other than the criticism of the first survey, which I provided when I linked to the survey) and without offering any evidence to contradict anything I’ve said.

    I presented a number of studies — some of which were physiological, some of which were sociological and none of which was authored by or published through the APA — and you dismissed all of the studies after accusing the APA of bias.

    If any of the studies I cited is wrong, point to some flaw in the methodology, in the sampling, or in the conclusions to substantiate your claim that it is wrong. Show that there is something that could call into doubt the study’s conclusion. I’m not even asking you to refute any study at this point: I’m just asking for a concrete, substantial criticism of any one of the scientific studies I cited. Surely, if the authors of the studies were all so biased as you claim, there must be something wrong with how they were conducted?

  127. Patrick Hogan
    August 31st, 2011 at 08:56 | #127

    bman :
    Regarding the open marriage agreement, a brief search on the words “open marriage” and “court” retrieved this comment from Kiplinger’s Personal Finance Apr 1987:

    “Couples can put anything they want into an agreement…The courts..will not enforce provisions that violate public policy, such as one that mandates a so-called open marriage.”

    Thus, adultery is considered grounds for divorce regardless of pre-nuptials.

    In 1987, most states still criminalized adultery and the Supreme Court had recently held (one year earlier, in href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=478&page=186#t3″>Bowers v. Hardwick, that moral disapprobation constituted a rational basis for enacting a law (i.e.: that the state could make laws regulating sexual acts on the basis of morality, with no further rational basis required). As of Lawrence, this is no longer the case. Furthermore, most states have either repealed their adultery laws outright, made them prosecutable only in civil court and only by the adulterer’s spouse, and/or never or almost never enforce such laws (enforcement could well provide a test case for review by the Supreme Court which, under Lawrence, would likely strike down most laws against adultery).

    The fact that adultery remains grounds for divorce is utterly meaningless, since every state allows for no-fault divorce. Disagreements over where to put the TV remote are considered equally valid grounds for divorce, but I doubt you would argue that “on the coffee table” is contracted by marriage.

    Furthermore, other parts of the Kiplinger article directly contradict the court statements you cited:

    Kiplinger’s Personal Finance Apr 1987A marital agreement is generally binding until both decide to cancel it…You can modify you agreement as circumstances change or even negotiate one for the first time after marriage, although the rules for postnuptial agreements may be more demanding than for prenuptial contracts.

    So, apparently, the legal nature of marriage had changed a great deal between the 1880s case you cited and the 1987 Kiplinger article (or Kiplinger is factually inaccurate; the article cited no court cases and no law to support its opinion, though I would tend to take it at face value).

    In turn, that means marriage is “legally” a sexual contract, and a monogamous sexual contract at that. Its not just a matter of “social expectation” or “private” contract.

    At best, your argument would prove that sex outside of marriage is contractually prohibited — not that marriage is a sexual contract. In order for marriage to be legally a sexual contract, it must be shown that the law expects sex to occur inside of marriage (not just that it expects that sex not occur outside of marriage). This has been the crux of my argument from the beginning, and is why I continue to bring up cases like Turner in which the court upheld the right to marry even when sex cannot ever take place.

    I’m out of time for the moment, but I’ll respond the the rest of your post sometime later.

  128. August 31st, 2011 at 13:10 | #128

    @Patrick Hogan
    “cohabitation rather than marriage carries the presumption of sex; marriage is typically correlated with cohabitation, so that might explain the conflation of the two. ”

    True, cohabitation also carries the presumption of sex, which is why it was illegal until recently to cohabitate – which meant to live together as if married, without being married. Married couples were never charged with cohabitating, because they had a license to have sex, they were and still are allowed and approved to have sex and procreate offspring.

    ““It is so obvious” and “everyone knows” — but you can’t point to any law that supports your claim. Which really makes it more of a social than a legal tradition. ”

    The point is that marriage itself MEANS that the couple has sex. Words that are well understood don’t need any further explicit definition, just like everyone knows what “murder” means, or what “definition” means, etc. I can point you to lots of laws like fornication and adultery that do not apply to married couples. And I can point to Lawrence, which confirms that the Court understands marriage as – at bottom – “about the right to have sexual intercourse.” Yes, they are making the point that it is about more than “just” or “simply” that, but they certainly affirm that it is about the right to have sexual intercourse, or else the sentence wouldn’t make any sense.

    “And you blatantly ignored the cases I pointed out which belie that assumption — cases which prove that not all married couples are allowed to procreate with their own genes, and cases in which legally married couples can be legally prevented from ever having sex. ”

    What married couples are not allowed to procreate with their own genes? And what legally married couples can be legally prevented from ever having sex? I think you will find that you are mistaken. Cousins that marry by proving their fertility are allowed to procreate with their own genes but are just not expected to. It wouldn’t be a crime if they did. And prisoners are incarcerated and kept from exercising most of their rights as punishment for their crime. They are allowed however to hope to be released someday and have sex with their spouse, and they are allowed to marry because marriage is more than just the right to have sex, and there is no requirement that consummation take place immediately after marriage.

    The discussion of eugenicists desiring to strip procreation rights from marriage relates to the discussion at hand, because I am trying to stop procreation rights from being stripped from marriage, and you are trying to say that marriage doesn’t protect procreation rights. All marriages should be allowed to have sex and procreate offspring using their own genes, none should be prohibited from creating offspring with their own genes (except while a spouse is incarcerated as punishment for a crime). Same-sex couples should be prohibited from creating offspring with their own genes.

  129. bman
    August 31st, 2011 at 16:51 | #129

    bman :… from Kiplinger’s Personal Finance Apr 1987: “Couples can put anything they want into an agreement…The courts..will not enforce provisions that violate public policy, such as one that mandates a so-called open marriage….”

    Patrick Hogan: ….other parts of the Kiplinger article directly contradict the court statements you cited: “A marital agreement is generally binding until both decide to cancel it…You can modify you agreement as circumstances change or even negotiate one for the first time after marriage, although the rules for postnuptial agreements may be more demanding than for prenuptial contracts.” So, apparently, the legal nature of marriage had changed a great deal between the 1880s case you cited and the 1987 Kiplinger article (or Kiplinger is factually inaccurate; the article cited no court cases and no law to support its opinion, though I would tend to take it at face value).

    Where is there a conflict?

    It seems the statement you quoted from Kiplinger is compatible with Maynard V. Hill once we interpret it in harmony with the Kiplinger statement I quoted.

    “Couples can put anything they want into an agreement…The courts..will not enforce provisions that violate public policy, such as one that mandates a so-called open marriage.”

    Are you claiming a contradiction within the Kiplinger article?

    If not, then your quotation refers to nuptial agreements that do not violate public policy, which sounds compatible with Maynard v. Hill.

  130. bman
    August 31st, 2011 at 20:04 | #130

    Patrick Hogan: The fact that adultery remains grounds for divorce is utterly meaningless, since every state allows for no-fault divorce. Disagreements over where to put the TV remote are considered equally valid grounds for divorce, but I doubt you would argue that “on the coffee table” is contracted by marriage.

    In many states where no fault divorce exists, fault based divorce is still an option.

    A fault based divorce might be granted sooner, for example, permitting the injured party to move on and not have to endure the mandatory “cool down period” for no fault divorce.

    Additionally, in fault based divorce, where the marriage is due to adultery, the injured party may obtain greater relief from the court in other areas, such as custody arrangements. There can also be relief from doubt or guilt if the court actually dealt with the adultery, rather than it being glossed over.

    Furthermore, no fault divorce is generally designed for when both parties agree the marriage can’t be reconciled.

    If, say, the adulterous party doesn’t want the divorce, the court will want a reason to know why the marriage can’t still be reconciled. The act of adultery would be grounds to proceed with the divorce in that case, whereas a TV remote dispute would not.

    There are many reasons that people may seek divorce, but adultery strikes at the very essence of what marriage is, where others do not. I would hope even you can see a TV remote dispute does not go to the essence of what marriage is.

    Also consider, for example, that adultery is not grounds for losing a driver’s license, but driving outside the lines is.

    Likewise, adultery is not grounds for losing a fishing license, but catching fish outside the rules is.

    There are, then, certain acts that violate the essential purpose of a license.

    When a driving violation goes against the essential purpose of the license, the license has driving rules.

    When a fishing violation goes against the essential prupose of the license, the license has fishing rules.

    And, when a sexual act violates the essential purpose of the license, the license has sex rules.

    Marriage has sex rules. Adultery strikes at the very essence of what marriage is, and because it does, it tells us that marriage is a sexual relationship at law.

    As a side note, a principle that exists at law is not necessarily co-extensive with its enforcement. A principle can exist at law that is not enforced at all, for example. That would not prove the principle did not exist. Rather, it would imply some other factors, such as the practicality of enforcement might prevent enforcement, or conflicting laws even. Thus, your attempts to show non-enforcement do not necessarily imply what marriage is.

    Patrick Hogan: At best, your argument would prove that sex outside of marriage is contractually prohibited — not that marriage is a sexual contract. In order for marriage to be legally a sexual contract, it must be shown that the law expects sex to occur inside of marriage (not just that it expects that sex not occur outside of marriage)

    Once you acknowledge “sex outside of marriage is contractually prohibited” by public law, you have granted my argument that marriage has sex rules at law.

    Besides, you are creating a false dilemma with this inside/outside theme.

    A fishing license, for example, does not require the holder to catch any fish at all.

    Does that mean a fishing license has nothing to do with actually catching fish, then?

    Shall we presume society “merely” expects the man to catch fish now that he has fishing license? Or, is there more to it than that? There is more to it. The fishing license restricts the man to catching fish within certain rules, and both society and law expect him to stay within those rules.

    The only time a fishing license is “enforced” is when the holder catches fish “outside the terms of the license.”

    That would be analogous to a married person having sex outside the terms public has set for marriage, even as it set the terms for fishing. Its the law. A married person can only have sex within marriage. They are not simply free to have sex with others.

    Lastly, your view of Lawrence seems overstated. There was an obscenity case, for example, that tried to argue Lawrence meant morality was no longer a basis for law. The obscenity charges were upheld.

    There have also been recent cases of prosecution for adultery since Lawrence.

    The essence of Lawrence seems to be that certain private acts are protected from criminalization unless a compelling public purpose exists.

    The protection of marriage, however has always been viewed as a compelling state interest. The article cited below also states, “To say that threats to marriage are a particular concern of the Supreme Court’s fundamental rights jurisprudence understates the matter substantially – marriage is practically the Court’s Platonic ideal of what an intimate relationship is.”

    The Massachusetts Bar Association has an article that makes it clear adultery is still a crime in Massachusetts and explains why Lawrence might not affect adultery laws.

  131. Patrick Hogan
    August 31st, 2011 at 23:53 | #131

    Continuing from where I left off earlier:

    bman :
    The legal philosophy behind your two excerpts bases marriage on a “private contract theory.”
    In reality, however, marriage is based on a “social contract theory” where society sets the minimum terms of that contract that are in its best interest.
    This explained quite well in the case MAYNARD V. HILL, 125 U. S. 190 (1888).

    Maynard considers marriage to be “something more than a contract”; so do I — I have repeatedly stated both that marriage is a fundamental right and a relationship and is subject to the laws of the state in which it is conducted. You seem to contend that sex within marriage is both a part of the relationship established through the marriage contract — that is, a fundamental characteristic of marriage itself — and subject to regulation by the state; I contend that the state involvement in marital sex takes the form of enforcement of a contract, not of upholding a right, and as such is best considered a contractual provision of marriage rather than a legal expectation.

    I base this contention on the fact that a court remedies violation of a right by establishing that right (for example, by striking down laws which prohibit the exercising of that right), but, when presented with a breach of contract, a court can declare the contract void rather than enforce the terms. In the case at hand: you claim that sex with a spouse is a right. When one spouse refuses to have sex with the other, though, the court cannot order the refusing spouse to comply with the aggrieved spouse’s wishes; rather, the contract can be dissolved.

    Far more central to the discussion at hand, however, is this: what are the limitations of the state’s power to regulate marriage?

    You are quite correct in “asserting that marriage is a social relation subject to the State’s police power,” but you seem to “contend in [your] argument … that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment” (text taken from Loving v. Virgnia, referring to the state’s citing of Maynard).

    In fact, many state regulations attempting to restrict access to marriage or to limit the rights of married couples based solely on moral grounds have utterly failed. In 1967, SCOTUS struck down laws prohibiting interracial marriage — despite the people of Virginia’s expressed wish to promote “racially pure” relationships and prevent relationships they considered immoral. Just two years prior, in Griswold v. Connecticut, SCOTUS had struck down laws preventing the use of contraceptives by married couples.

    Surely if states have the right to restrict marriage based on what types of relationships they want to “endorse”, they have the right to restrict married couples from engaging in behavior which is contrary to the expressed purpose of that endorsement (or, at the very least, to make the marriage legally void if the couple should at any time engage in behavior contrary to the expressed purpose of that endorsement). Thus, if the state has a right to restrict marriage to heterosexuals to convey “the endorsement and approval by society of a couple’s procreative sexual relationship” (your post), states would be able to pass laws to declare void any marriages in which couples use contraception or intentional sterilization to prevent procreation. Griswold, however, would seem to indicate that any such law would be struck down.

    While we’re at it, though, I’d like to bring up the cases (which have been completely ignored thus far) I mentioned in a previous post:

    Patrick Hogan:
    Could states, in deciding what type of relationships they want to formally recognize, prevent cohabitating couples from marrying? After all, statistics show that couples who cohabitate before marriage are more likely to divorce. Could the state prohibit couples from marrying if both individuals intended to continue with a career? That would ensure that any children born to the couple would have a stay at home parent. Could the state impose education restrictions on marriage? Statistically speaking, people with higher education upon entering marriage are less likely to divorce.

    Could the state prohibit a man and a woman from marrying if the woman has had an abortion, or if she’s had a non-medically necessary hysterectomy, or if the man has had a non-medically necessary vasectomy (for surely none of these is more of an invasion of privacy than the blood tests required by some states to meet consanguinity requirements)? That would strengthen the link between marriage and procreation by excluding those who have intentionally eliminated their abilities to procreate.

    You have yet to answer why the state can allow explicitly non-procreative opposite sex couples to marry but still consider marriage to be an “endorsement” of procreative sex and, on such grounds, deny marriage to gay and lesbian couples. You have yet to answer why the state can limit marriage to opposite sex couples to “endorse” procreative sex but cannot prevent cohabitating, uneducated, intentionally sterile or two-career couples from marrying to keep from endorsing relationships which are statistically more likely to fail.

    And so marriage is about a social contract that has more to do “with the morals and civilization of a people than any other institution.” A private contract between individuals does not determine the morality that marriage represents but the society does that.

    Several recent Supreme Court cases have established that moral disapprobation is an insufficient rational basis for the passage of a law (for example, Romer and Lawrence both struck down laws which were passed to maintain a moral standard in society under rational basis review). As such, linking restrictions on marriage to “maintaining a moral standard” (or an attempt to “determine the morality” of a relationship) is an argument for striking down such laws — not for upholding them.

    It also follows, since society has a right to make adultery a breach of the marriage contract, even if a prenuptial agreement was made to the contrary, society also has the right to define the sexual morality surrounding marriage.

    Many states have either repealed laws against adultery outright, limited the laws such that only the aggrieved spouse may file suit, or so rarely enforce the laws that there have been no recent challenges. Given that Lawrence did not limit its findings to unmarried couples, nor did Lawrence carve out an exception to allow sex between a married person and other person to whom the first is not married to be regulated, it seems likely that any criminal prosecution of adultery (whether by the spouse or by the state) would result in laws against adultery being overturned.

    The tort of “alienation of affections” (essentially, adultery as a tort) is still sufficient to make your point, such as it is. However, the ability of the state to provide for redress when one spouse suffers substantial emotional distress based on the sexual actions of the other hardly means that the state has the right to “define the sexual morality surrounding marriage.” At best, it can be argued that the state may provide for means of restitution and/or the dissolution of marriage should the sexual activities of one partner cause substantial harm to the other. That is not at all the same as saying that the state may regulate the morality of sex within marriage — or the morality of the relationships of couples seeking to enter into marriage.

    It means marriage is very much about the sexual morality of the community as it is the relationship of the two partners.

    You still have not established that marriage is always about sex, or that marital law requires married couples to have a sexual relationship, or that marriage should be seen as endorsing procreative sex between married couples but should not be seen as endorsing non-procreative sex between couples, or that the state is justified in denying marriage to gay and lesbian couples by the idea that marriage endorses procreative sex. You have not established that the state has any interest at all in whether or not the couple has sex — whether with each other or with other parties — except to resolve disputes between the couple.

    Most importantly: you have not in any way established that any part of marital law was created to promote a particular morality or to discourage immorality. Every statute, every stipulation we have discussed relates to the state’s interest in resolving conflict between the spouses, not to validating their relationship as moral.

    I should note, of course, that some marital laws in the past were established on the basis of particular moral reasoning (as has been indicated in some of the court cases each of us has cited); however, in the cases of laws which are still on the books and still enforceable, there was also some rational interest served by passage of the law — and it is that rational interest which has kept the law from being struck down (not the morality of it). The Supreme Court has held that moral disapprobation is an insufficient rational basis for the passage of a law(Romer and Lawrence are both particularly well known for this).

  132. Patrick Hogan
    September 1st, 2011 at 01:31 | #132

    John Howard :
    @Patrick Hogan
    “cohabitation rather than marriage carries the presumption of sex; marriage is typically correlated with cohabitation, so that might explain the conflation of the two. ”
    True, cohabitation also carries the presumption of sex, which is why it was illegal until recently to cohabitate – which meant to live together as if married, without being married. Married couples were never charged with cohabitating, because they had a license to have sex, they were and still are allowed and approved to have sex and procreate offspring.

    The actual crime with which cohabitating couples were charged was, if I’m not mistaken, fornication or adultery (depending on whether each individual was single or married to a third party; some states may have had an additional crime of “cohabitation” which built upon the definition of fornication, but the root crime in each case was essentially fornication or adultery). Married couples were not charged with either because they did not meet the definition of either. Married couples were — and still are — allowed to have sex and/or procreate because the rights to have sex and to procreate are protected under the right to privacy. Laws against fornication, which were historically improperly enforced (and may still, in some states, be on the books — though not enforceable in light of cases such as Eisenstadt and Lawrence), violated that right to privacy.

    I have shown that unmarried couples (and, indeed, individuals) have the right to have sex (including both procreative and non-procreative sex) and to procreate; I have also shown that not all married couples have the right to procreate using their own genes, and that there are some cases in which married couples can be legally prevented from having sex. In other words, I have offered examples which either directly or implicitly contradict your claim from every side.

    Do you have any court ruling or law (excluding those that have been overruled/struck down, of course) which substantiates your claim that marriage licenses sex and procreation? To be clear: I’m looking for any currently standing state or federal law or court ruling which establishes that marriage creates or in some way enhances/protects the right to have sex and the right to procreate using one’s own genes.

    ““It is so obvious” and “everyone knows” — but you can’t point to any law that supports your claim. Which really makes it more of a social than a legal tradition. ”
    The point is that marriage itself MEANS that the couple has sex.

    Again: I have pointed to several cases wherein marriage does not, in any way shape or form, mean that the couple has sex. You can make claims about what you think marriage means all day; if you want anyone to take your claims seriously, cite a legal precedent to substantiate them.

    Words that are well understood don’t need any further explicit definition, just like everyone knows what “murder” means, or what “definition” means, etc.

    This is argument against, not for, presuming the definition of words. Laws routinely spell out, in very clear, complete ways — exactly what is meant by common words (specifically to avoid confusion which would arise as society’s understanding of the word changes). For example, the definition of murder — which everyone knows — is, according to Legal Dictionary:

    the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority.

    And that’s the short definition: the clarifications, examples, exemptions, and list similar-but-not-quite-the-same legal terms goes on at length. And, it’s worth pointing out, that’s just an online resource; the actual laws which define such terms tend to go on at greater length. Imagine how much more thoroughly defined a term which varies from culture to culture, region to region, state to state, and even year to year would need to be defined.

    I can point you to lots of laws like fornication and adultery that do not apply to married couples.

    And I can — and have — pointed out that such laws are unconstitutional. The right to have sex and/or procreate, whether one is married or not, has been repeatedly upheld by the Supreme Court; furthermore, the right to have sex and the right to procreate within marriage has been held to the same standards as the right to have sex and the right to procreate outside of marriage (i.e.: each right can be abridged if it is necessary to further a state interest which is upheld under heightened/strict scrutiny).

    And I can point to Lawrence, which confirms that the Court understands marriage as – at bottom – “about the right to have sexual intercourse.” Yes, they are making the point that it is about more than “just” or “simply” that, but they certainly affirm that it is about the right to have sexual intercourse, or else the sentence wouldn’t make any sense.

    I still think that you’re confusing Lawrence with some other case. Lawrence had — expressly — nothing to do with marriage. Further, I think that anyone who reduces marriage to being “about the right to have sexual intercourse” is, to be perfectly blunt, going about it all wrong. Marriage should be about devoting yourself to your spouse (which can — and often does — include sex, but is about much, much more than sex); this is directly reflected in the way that laws automatically grant spouses hospital visitation rights, inheritance rights, and the right to make serious medical and end of life decisions for each other.

    “And you blatantly ignored the cases I pointed out which belie that assumption — cases which prove that not all married couples are allowed to procreate with their own genes, and cases in which legally married couples can be legally prevented from ever having sex. ”
    What married couples are not allowed to procreate with their own genes? And what legally married couples can be legally prevented from ever having sex? I think you will find that you are mistaken. Cousins that marry by proving their fertility are allowed to procreate with their own genes but are just not expected to. It wouldn’t be a crime if they did.

    You are technically correct that it would not be a crime for two infertile cousins who were allowed to marry after proving their infertility to procreate; however, since it would have been a crime for the two to marry had they been able to procreate, I stand by my statement: certain married couples are prohibited from procreating with their own genes. If you would like, you can read it instead as: Certain couples are prohibited from marrying if they are capable of procreating with their own genes. The point still stands.

    And prisoners are incarcerated and kept from exercising most of their rights as punishment for their crime. They are allowed however to hope to be released someday and have sex with their spouse, and they are allowed to marry because marriage is more than just the right to have sex, and there is no requirement that consummation take place immediately after marriage.

    Turner specifically considered the possibility that some prisoners may be imprisoned for life without possibility of parole or of conjugal visits, but failed to eliminate them from the protection of the right to marry unless elimination of the right to marry was part of the punishment for their crimes. In other words, the Turner court took time to recognize — and accept — that their ruling could result in some legally married couples being legally prevented from ever having sex. While life prisoners with no chance of parole or conjugal visits retain the right “to hope to be released someday,” the reality for some is that such hope is utterly irrational; it has no bearing on the fact that they cannot and will not ever have sex with their spouse.

    Furthermore: I have not found any current US marriage law (particularly, at the state or federal level) which requires consummation. Ever. Refusal to consummate can be grounds for dissolution of the marriage at the request of one or both spouses and, in certain cases, can be used as evidence that the marriage was committed for fraudulent purposes, but I have not found any law which requires consummation at any point in the marriage (and I have found federal case law, such as that cited above, which indicates that requiring consummation for recognition of a marriage would unnecessarily infringe upon the right to privacy and/or the right to marriage, triggering strict scrutiny review which would, undoubtedly, strike down any such law as unconstitutional).

    The discussion of eugenicists desiring to strip procreation rights from marriage relates to the discussion at hand, because I am trying to stop procreation rights from being stripped from marriage, and you are trying to say that marriage doesn’t protect procreation rights.

    Actually, I’m saying — and presenting evidence — that sex and procreation rights are protected independently of marriage. But go on.

    All marriages should be allowed to have sex and procreate offspring using their own genes, none should be prohibited from creating offspring with their own genes (except while a spouse is incarcerated as punishment for a crime).

    Under the right to privacy, anyone capable of consent (including age of consent requirements) is (and should be) allowed to have sex and/or procreate except when there is a particularized and substantial state interest which is served by establishing a law tailored to impact fundamental rights only so much as is necessary to protect that state interest.

    This has been held by the Supreme Court in a number of cases, some of which I’ve cited above and/or in past posts. Since the rights exist independent of marriage, there is no need to establish the right as dependent on marriage; the only purpose furthered by doing so would be to abridge either the right to procreate or the right to have sex outside of marriage.

    Same-sex couples should be prohibited from creating offspring with their own genes.

    And it seems that we’ve struck at the heart of the issue: it’s not that you believe I’m trying to deny that married couples have a right to have sex and procreate (I’m clearly not), but that you seek to deny unmarried couples the right to procreate — and, so, by excluding same sex couples from marriage, deny them the right to procreate. You seek to tie procreation rights to marriage to deny unmarried couples the right to procreate; if this was successful, how long would it be until you sought to tie the right to have sex exclusively to marriage in an attempt to deny that right to unmarried couples?

    Do you have any legal or logical argument to substantiate your claim that same sex couples should not be allowed to reproduce using their own genes (presuming the technology to do so ever becomes available)? You’ve made the claim several times, but you have not offered any evidence or argument to support it.

    More importantly: Do you have any evidence or legal argument to substantiate the idea that procreation — particularly, artificial means of procreation — is inherently tied to marriage?

    Evidence in your favor would likely take the form of a case in which a court ruled that access to assisted reproduction constitutes a fundamental right for a married couple but not for someone who is unmarried — but I know of no such case (and have good reason to doubt that any substantially similar case exists). Evidence against your case might take the form of Eisenstadt, Roe, Turner, Zablocki and Lawrence, for starters — and none of those even deal specifically with artificial means of procreation.

  133. Patrick Hogan
    September 1st, 2011 at 03:06 | #133

    bman :

    Are you claiming a contradiction within the Kiplinger article?
    If not, then your quotation refers to nuptial agreements that do not violate public policy, which sounds compatible with Maynard v. Hill.

    The conflict is with Maynard’s statement that

    When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common.

    According Maynard, only the state may modify an existing marriage; according to Kiplinger, the couple may make legal modifications their own marriage (though they are limited to modifications which do not contradict the law).

    bman :

    Patrick Hogan: The fact that adultery remains grounds for divorce is utterly meaningless, since every state allows for no-fault divorce. Disagreements over where to put the TV remote are considered equally valid grounds for divorce, but I doubt you would argue that “on the coffee table” is contracted by marriage.

    In many states where no fault divorce exists, fault based divorce is still an option.
    A fault based divorce might be granted sooner, for example, permitting the injured party to move on and not have to endure the mandatory “cool down period” for no fault divorce.
    Additionally, in fault based divorce, where the marriage is due to adultery, the injured party may obtain greater relief from the court in other areas, such as custody arrangements. There can also be relief from doubt or guilt if the court actually dealt with the adultery, rather than it being glossed over.

    (emphasis mine)

    The key words to the fault-divorce examples you provided are “injured party”. There has to be a party that suffered injury for the law to care; whether or not the couple was having sex, whether or not they were having sex with other people, the state does not grant a fault divorce unless one of the parties claims injury based on the action or inaction of the other.

    Furthermore, no fault divorce is generally designed for when both parties agree the marriage can’t be reconciled.
    If, say, the adulterous party doesn’t want the divorce, the court will want a reason to know why the marriage can’t still be reconciled. The act of adultery would be grounds to proceed with the divorce in that case, whereas a TV remote dispute would not.

    In a no-fault divorce, an “irretrievable breakdown in the marriage” — whether over a TV remote dispute or something else — is sufficient. That’s kind of the point — there doesn’t have to be a substantial reason, as long as at least one spouse asserts that the marriage cannot be reconciled.

    There are many reasons that people may seek divorce, but adultery strikes at the very essence of what marriage is, where others do not. I would hope even you can see a TV remote dispute does not go to the essence of what marriage is.

    I would argue that any kind of exclusive intimacy with a person who is not your spouse — whether sexual or otherwise — “strikes at the very essence of what marriage is”. And I threw out the remote example specifically because I assume that everyone who frequents this blog can see that tv remotes have nothing to do with the nature of marriage.

    Also consider, for example, that adultery is not grounds for losing a driver’s license, but driving outside the lines is.

    And, when a sexual act violates the essential purpose of the license, the license has sex rules.

    There is a very substantial difference between each of the examples you offered and adultery. If the state catches a spouse committing adultery but the other spouse does not file suit, the state will not take action to dissolve the marriage. With each of the examples you cited, the state takes action upon a violation even if no injury occurred. The state only takes an interest in extra-marital sex when an injured party files a complaint — which seems to suggest that the state’s interest in preventing extramarital sex is more about prevention of injury than licensing of sex.

    Marriage has sex rules. Adultery strikes at the very essence of what marriage is, and because it does, it tells us that marriage is a sexual relationship at law.

    Then why is adultery not grounds for the state to dissolve the marriage without complaint from a spouse? Why is there no requirement for sex within marriage?

    As a side note, a principle that exists at law is not necessarily co-extensive with its enforcement. A principle can exist at law that is not enforced at all, for example. That would not prove the principle did not exist. Rather, it would imply some other factors, such as the practicality of enforcement might prevent enforcement, or conflicting laws even. Thus, your attempts to show non-enforcement do not necessarily imply what marriage is.

    And, frequently, it shows that the law was created with one intent, but that intention has become either obsolete or pre-empted by other priorities since the law was created. Sometimes, it even means that enforcement of the provision is expected to prove unconstitutional — as enforcement of criminal sanctions against adultery would likely prove unconstitutional in light of Lawrence.

    Patrick Hogan: At best, your argument would prove that sex outside of marriage is contractually prohibited — not that marriage is a sexual contract. In order for marriage to be legally a sexual contract, it must be shown that the law expects sex to occur inside of marriage (not just that it expects that sex not occur outside of marriage)

    Once you acknowledge “sex outside of marriage is contractually prohibited” by public law, you have granted my argument that marriage has sex rules at law.

    I have not disputed that there are laws which deal sex on the basis of marital status. I have disputed — and continue to dispute — your claim that marriage is “legally a sexual relationship.” I have disputed — and continue to dispute — that sex is the central, defining feature of marriage, particularly in law.

    Besides, you are creating a false dilemma with this inside/outside theme.
    A fishing license, for example, does not require the holder to catch any fish at all.

    But a fishing license is required to catch any fish at all; a marriage license is not required to have a sexual relationship.

    Does that mean a fishing license has nothing to do with actually catching fish, then?

    A fishing license has nothing (or at least, nothing substantial) to do with fishing in areas that do not require fishing licenses; by analogy, one would have to assume that a marriage license has nothing to do with sex in areas that do not require or issue licenses to have sex — that is, everywhere in the US.

    Shall we presume society “merely” expects the man to catch fish now that he has fishing license? Or, is there more to it than that? There is more to it. The fishing license restricts the man to catching fish within certain rules, and both society and law expect him to stay within those rules.

    Actually, the rules apply whether or not you have a fishing license — they just tend to get overlooked in favor of the basic prohibition against fishing without a license. A better example would be a fishing license to participate in a competition which has particular rules that are above and beyond those that apply to fishermen (and fisherwomen) in general; violation of the rules can result in revocation of the violator’s participation in the competition and, in some cases, revocation of the license to fish. But such rules would be a part of a contract, not a part of the license.

    The only time a fishing license is “enforced” is when the holder catches fish “outside the terms of the license.”

    Actually (though this may vary depending on which authority has jurisdiction), I don’t believe you have to actually catch a fish to violate the license — simply going fishing is, at least in some states, enough to constitute a violation. But I don’t think that’s particularly relevant to the analogy…

    That would be analogous to a married person having sex outside the terms public has set for marriage, even as it set the terms for fishing. Its the law. A married person can only have sex within marriage. They are not simply free to have sex with others.

    A violation of a fishing license — or fishing without a license — constitutes a crime in and of itself, and the state can and does take action to punish that crime. Regarding marriage: the state, even if it knows of adultery, will only take action if it is requested by the injured party. Again: the state’s interest in punishing adultery seems to be more about protecting the spouses from injury (or providing restitution for injury) than in the sex itself.

    Otherwise, it would be very easy to throw up a law — as per Maynard that any marriage in which one or both spouses commits adultery is automatically void. Hell — it could even be one of those laws that’s rarely enforced, but it would help to uphold the view you’ve espoused that marriage is, legally, a sexual relationship.

    Lastly, your view of Lawrence seems overstated. There was an obscenity case, for example, that tried to argue Lawrence meant morality was no longer a basis for law. The obscenity charges were upheld.

    At what level of review, and what precedent did the court cite as being controlling?

    There have also been recent cases of prosecution for adultery since Lawrence.

    Cases of prosecution for adultery, or divorce cases (fault or otherwise) which cited adultery as the reason for divorce. The two are very, very distinct cases.

    The essence of Lawrence seems to be that certain private acts are protected from criminalization unless a compelling public purpose exists.

    And that promoting morality — the state-cited reason for the laws struck down by Lawrence — is an insufficient rational basis for laws criminalizing consensual sex between adults. The court cited Planned Parenthood of Southeastern Pa v. Casey, saying: “Our obligation is to define the liberty of all, not to mandate our own moral code.” It certainly sounds like the opinion of the court was meant to indicate that moral disapprobation is not a sufficient rational basis — though cases of adultery in which an injured party brings the claim have a much stronger rational basis.

    The protection of marriage, however has always been viewed as a compelling state interest. The article cited below also states, “To say that threats to marriage are a particular concern of the Supreme Court’s fundamental rights jurisprudence understates the matter substantially – marriage is practically the Court’s Platonic ideal of what an intimate relationship is.”

    And laws which allow adultery as a reason for divorce but do not allow a state to dissolve a marriage because adultery has occurred are consistent with the goal of protecting marriage; they are not, however, enough to claim that the court considers marriage to be, in a legal sense, a sexual relationship — much less enough to claim that the state can regulate marital sex when no injury takes place, as is the case in banning same sex couples from marriage.

    The Massachusetts Bar Association has an article that makes it clear adultery is still a crime in Massachusetts and explains why Lawrence might not affect adultery laws.

    It is an interesting read, but — as the author acknowledges — presuming that the court will take such a deferential view is, at best, a tenuous position. And that still only applies to adultery laws — laws which punish extramarital sex on the presumption that the non-adulterous spouse is injured by the extramarital sex. The article in no way extends such deference to relationships and behaviors which do not threaten to destabilize or injure an existing marriage.

    I still cannot see any way in which the court considers marriage to be legally a sexual relationship (provisions by which an injured party may dissolve the marriage and/or seek redress notwithstanding), and I cannot see any way for the state to legislate restrictions based solely on morality as to the types of relationships which can be recognized in marriage that can hold up under constitutional review.

  134. September 1st, 2011 at 12:15 | #134

    “To be clear: I’m looking for any currently standing state or federal law or court ruling which establishes that marriage creates or in some way enhances/protects the right to have sex and the right to procreate using one’s own genes. ”

    I can show you countless couples that are not allowed to marry because they are not allowed to have sex or procreate. And current incest laws reference relations that are prohibited to marry.

    It is indeed Lawrence (in both the syllabus and Kennedy’s opinion, that proves SCOTUS currently considers marriage to be “about the right to have sexual intercourse”. They say it is not “just” or “simply” that, but affirm its most basic meaning with the words “just” and “simply.” And sexual intercourse means procreation, the basic human right is to marry and procreate.

    No SCOTUS case has struck down fornication laws or said individuals have a right to procreate that can’t be regulated with supportable laws, you’re trying to extrapolate from cases about sodomy and contraception. They have upheld privacy and equality for everyone to be equally allowed to marry the person of their (mutual) choice, but allowed for laws that forbade cousin marriage or sibling marriage, and the thing they were talking about was having sex and making babies.

    Nevertheless, your argument proves my point that we need to write a federal law (Glenn the Constitution calls for it) that establishes the “effect thereof” of state marriage so it is consistent from state to state. The effect should be to protect and affirm the right of the couple to have sex and procreate offspring using their own genes. That is one of the three laws of the Egg and Sperm Civil Union Compromise.

    Your argument is that this law would have no effect right? You would say that there is no difference in a married couple’s rights after this law. So there is no reason to oppose that law unless you want to make conceiving offspring together a separate right from marriage in the future, so as to be able to prohibit a married couple from having children, their own offspring. Lots of people do want to do that. It is a necessary law given how many people are denying that married couples have a right to have procreative sex and procreate with their own genes.

    We could still ban IVF and other unethical stuff too a married couple might want to use (which could only be a man and a woman), Paul and Glenn and Anne, because even though it protects their right to procreate, it just means they cannot be prohibited from even attempting it, like same-sex couples would be. It doesn’t mean we cannot prohibit technology. It has never been a guarantee of success, indeed a key feature is that it commits the couple together when they don’t succeed. But it has always been approval of creation of offspring of the marriage using the couple’s own genes, even before labs started getting involved and it would still be after they are history. (And yes, Patrick, IVF and AI were originally allowed because the couple was married and protected by privacy, it wasn’t offered to single people until this past decade)

  135. September 1st, 2011 at 14:35 | #135

    @Patrick Hogan
    “Do you have any legal or logical argument to substantiate your claim that same sex couples should not be allowed to reproduce using their own genes (presuming the technology to do so ever becomes available)? You’ve made the claim several times, but you have not offered any evidence or argument to support it. ”

    Different people will have different concerns, an environmentalist would point to the use of scarce resources to purposefully create people on an already crowded planet, an animal rights activist would point to the animal experimentation necessary to test and experiment, a pediatrician would point to the risk of suffering from new diseases and defects, a human rights activist would point to the loss of dignity and equality that would come from people being made from lab created modified genes and bought and sold into child slavery, an economist would point to the cost to the public. There sure isn’t any right to do it, that’s for sure. Can you point to anything to substantiate your claim that there is a right to attempt to make offspring with someone of the other sex? No, I don’t think you can. At that point, it just is a public policy decision, like whether to build a bridge to nowhere or not. Insisting on a right to reproduce with someone of the other sex is foolish and churlish, it would have so many bad effects and so few good ones. I can’t think of one good one. Can you?

  136. September 1st, 2011 at 14:46 | #136

    By the way my argument doesn’t depend on sex or procreation outside of marriage not being a right. Even if there was a case that firmly established that unmarried couples have a right to have sex and/or procreate, my argument would be unaffected, because my argument is that married couples should have a right to procreate, it has nothing to do with unmarried couples. All I’m arguing is that marriage should officially legally protect and affirm the right to use the couple’s own genes to conceive offspring, genetic children, natural unmodified children, regardless of whether unmarried couples have a right to procreate or not.

  137. September 1st, 2011 at 16:47 | #137

    @John Howard
    Oops, I meant to say “Can you point to anything to substantiate your claim that there is a right to attempt to make offspring with someone of the SAME sex?” I’d really like to hear your arguments for why this should be allowed, why it is needed.

  138. bman
    September 1st, 2011 at 18:25 | #138

    @Patrick Hogan

    bman:…your quotation refers to nuptial agreements that do not violate public policy, which sounds compatible with Maynard v. Hill.

    Patrick Hogan: According Maynard, only the state may modify an existing marriage; according to Kiplinger, the couple may make legal modifications their own marriage (though they are limited to modifications which do not contradict the law).

    What you call “legal modifcations to their own marriage” simply means that pre-nuptial agreements are changeable to the extent they would not necessarily contradict existing law.

    Maynard agrees with that in principle because it means a couple can’t change their marriage where existing law as spoken.

  139. Patrick Hogan
    September 1st, 2011 at 21:59 | #139

    John Howard :
    “To be clear: I’m looking for any currently standing state or federal law or court ruling which establishes that marriage creates or in some way enhances/protects the right to have sex and the right to procreate using one’s own genes. ”
    I can show you countless couples that are not allowed to marry because they are not allowed to have sex or procreate. And current incest laws reference relations that are prohibited to marry.

    Then show it. Keep in mind, though, that to show that they are not allowed to marry because they are not allowed to procreate, you must show that there is a causal link between laws against them marrying and laws against them procreating. I’ve already showed a counter-example — cousins who are allowed to marry if and only if they prove their inability to procreate — but I’m interested to see what precedent you might present.

    It is indeed Lawrence (in both the syllabus and Kennedy’s opinion, that proves SCOTUS currently considers marriage to be “about the right to have sexual intercourse”. They say it is not “just” or “simply” that, but affirm its most basic meaning with the words “just” and “simply.”

    The closest I can find to Lawrence making any such assertion is when it states:

    To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse.

    The court objected to claims that marriage is only about sexual intercourse, but they did not affirm that marriage provides any right to sex that is lacking without marriage.

    And sexual intercourse means procreation, the basic human right is to marry and procreate.

    Sexual intercourse “means procreation” to whom? Not to SCOTUS, which has upheld the right to engage in expressly non-procreative sex (both for married and unmarried couples).

    No SCOTUS case has struck down fornication laws or said individuals have a right to procreate that can’t be regulated with supportable laws, you’re trying to extrapolate from cases about sodomy and contraception.

    At best, that would be quibbling — how can unmarried couples have a right to use contraception (for contraceptive purposes) if they do not have a right to sex? Fortunately, the court has explicitly stated that the right to privacy includes the right to procreate or avoid procreating while having sex, whether or not one is married:

    Eisenstadt v. BairdIf the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

    So, while SCOTUS might not have explicitly struck down laws prohibiting fornication, any challenge to such a law brought by a proponent with standing would surely result in the court striking down the law — unless SCOTUS decides to overturn Eisenstadt and subsequent cases (such as Roe, Planned Parenthood v. Casey, and Lawrence itself).

    They have upheld privacy and equality for everyone to be equally allowed to marry the person of their (mutual) choice, but allowed for laws that forbade cousin marriage or sibling marriage, and the thing they were talking about was having sex and making babies.

    Such laws are upheld because they are seen as advancing a particularized state interest and as being so narrowly tailored as to achieve that interest without unnecessarily infringing upon the fundamental right to marry. The fact that some states allow closely related couples to marry once they prove inability to procreate shows that such statutes are related to discouraging procreation — not necessarily sex — and that procreation is not considered a necessary feature of marriage.

    Nevertheless, your argument proves my point that we need to write a federal law (Glenn the Constitution calls for it) that establishes the “effect thereof” of state marriage so it is consistent from state to state. The effect should be to protect and affirm the right of the couple to have sex and procreate offspring using their own genes. That is one of the three laws of the Egg and Sperm Civil Union Compromise.

    If I had not read some of your other posts on other blogs (I think this one was on a blog post on NOM’s main site), I would have absolutely no idea as to what you are referring; as it is, I don’t remember the particulars. Would you care to specify what you mean by the “three laws of the Egg and Sperm Civil Union Compromise”?

    Your argument is that this law would have no effect right? You would say that there is no difference in a married couple’s rights after this law.

    Such a law as you seem to be proposing would not, in fact, have any effect on almost all married couples. However, the implicit effect of such a law would be to imply that non-married couples do not have such rights.

    So there is no reason to oppose that law unless you want to make conceiving offspring together a separate right from marriage in the future, so as to be able to prohibit a married couple from having children, their own offspring.

    I would argue the inverse: there is no reason to propose such a law unless you intend to effect social change in order take away the rights of unmarried couples to reproduce. Any attempt to take away any person’s right to reproduce — married or not — is a violation of the right to privacy.

    Lots of people do want to do that. It is a necessary law given how many people are denying that married couples have a right to have procreative sex and procreate with their own genes.

    Who is denying this? I have denied that the right is conferred by marriage, since SCOTUS has upheld the right of all individuals to make decisions regarding sex and procreation whether married or not, but the closest I have seen to anyone making such a claim is when I pointed out that certain couples are prohibited by the terms under which they are allowed to marry from being physically able to procreate witch each other.

    We could still ban IVF and other unethical stuff too a married couple might want to use (which could only be a man and a woman), Paul and Glenn and Anne, because even though it protects their right to procreate, it just means they cannot be prohibited from even attempting it, like same-sex couples would be.

    First of all: what is the purpose of the discussion? Namely — are we debating whether there is a right to artificial/assisted reproductive technology, whether such a right is fundamental, whether anyone should have access to such technology, or whether gay and lesbian couples should have the same access rights (or lack thereof) as straight couples and single individuals?

    To be honest, I don’t have a particularly strong opinion on IVF, but I cannot see any reason that artificial insemination and surrogacy options should be banned (though I tend to think that they should not be considered as fundamentally protected extensions of the right to reproduce). I do, however, think that gay and lesbian couples should have the same access to such technologies as straight couples — after all, gay and lesbian couples who cannot reproduce without assistance are similarly situated to straight couples who cannot reproduce without assistance, and, as such, are entitled to equal protection under the law.

    Second: Who are Paul, Glenn and Anne? Did I miss something?

    Third: You still have not offered any rational basis to prohibit same sex couples from “attempting to procreate”, much less a particularized state interest that would enable such a prohibition to stand up under heightened or strict scrutiny (as would be required since it abridges the fundamental right to procreate).

    It doesn’t mean we cannot prohibit technology. It has never been a guarantee of success, indeed a key feature is that it commits the couple together when they don’t succeed.

    It has also never required couples to try. It also does not require couples to even have sex. It also doesn’t prevent couples from intentionally preventing themselves from reproducing. It also doesn’t prohibit unmarried couples from procreating or attempting to procreate. And while a blanket ban on such technologies might be within the power of the legislature (though I would tend to think that SCOTUS would find otherwise, based largely on Eisenstadt and Griswold), I do not believe legislation which discriminates on the basis of marital status would be upheld. I will admit, though, that I am not particularly well versed in case law regarding assisted/artificial reproductive technology; there may be precedent which renders analogy to Eisenstadt less influential.

    But it has always been approval of creation of offspring of the marriage using the couple’s own genes, even before labs started getting involved and it would still be after they are history.

    Then why have you not been able to point to a single case or law to substantiate your claim that marriage confers such an approval? You’ve repeatedly asserted it, stated that everyone knows it — but you have yet to substantiate it. I have pointed to case law which holds that the state cannot interfere with an individual’s right to reproduce without meeting the exacting standards of heightened or strict scrutiny, contravening your claim that such a right is granted by marriage rather than existing independently of marriage.

    (And yes, Patrick, IVF and AI were originally allowed because the couple was married and protected by privacy, it wasn’t offered to single people until this past decade)

    Did the state limit IVF and AI to married couples, or did companies only offer it to married couples of their own volition? Your reference to the right to privacy would seem to indicate that single people and unmarried couples — possessing that same right to privacy — would have the same right (or lack thereof) to the technology.

    John Howard :
    @Patrick Hogan
    “Do you have any legal or logical argument to substantiate your claim that same sex couples should not be allowed to reproduce using their own genes (presuming the technology to do so ever becomes available)? You’ve made the claim several times, but you have not offered any evidence or argument to support it. ”
    Different people will have different concerns, an environmentalist would point to the use of scarce resources to purposefully create people on an already crowded planet, an animal rights activist would point to the animal experimentation necessary to test and experiment, a pediatrician would point to the risk of suffering from new diseases and defects, a human rights activist would point to the loss of dignity and equality that would come from people being made from lab …

    All of the arguments you’ve made so far apply just as fully to heterosexual couples seeking to use artificial reproductive techniques; it seems as though you are arguing against using artificial techniques in general, not against allowing gay and lesbian couples in particular to be banned from using such techniques. And none of the arguments so far apply to gay and lesbian couples seeking to use artificial insemination any more than they would apply to straight couples seeking to procreate at all.

    … created modified genes …

    Then push for a ban on gene modification (or, as would more likely be the case, on gamete modification). I don’t think such a ban will go anywhere — people are too interested in the technology and in potential offshoot technologies — but, as before, any such ban would need to apply to heterosexual as well as homosexual couples. I think — based on the caution with which the courts tend to approach new technology and the deference the courts tend to show the legislature — that such a ban would currently be considered constitutional.

    … and bought and sold into child slavery, …

    How did you come up with that? It seems you’ve moved off onto another conversation entirely — namely, you seem to be considering the possibility that humans will be produced to fill a labor force, and that humans produced in such a way would have fewer (no?) rights than humans produced via unaided reproduction. That is an entirely different topic than any discussion on whether gay and lesbian couples have a right to marry.

    … an economist would point to the cost to the public.

    …Okay. So pass a law prohibiting the use of public funding. “Cost to the public” for development and application of technology doesn’t, so far as I can see, really enter into the discussion. The fundamental issue is this: is there a fundamental right to use artificial means to aid or supplement one’s ability to reproduce. If such a right exists and is fundamental, it seems likely that cost — while sufficient for a rational basis — would be insufficient as a particularized state interest.

    There sure isn’t any right to do it, that’s for sure.

    That has not been established one way or the other in our discussion, since no court cases with regard to assisted/artificial reproduction have yet been cited. However, based on the rulings in Eisenstadt and Griswold, there would seem to be SCOTUS precedent for finding that access to reproductive technologies is protected under the right to privacy (for all individuals, whether married or not). While each of the two cases dealt specifically with the right to access technology to prevent conception, the cases were decided upon the principle that “It is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

    Can you point to anything to substantiate your claim that there is a right to attempt to make offspring with someone of the other sex? No, I don’t think you can.

    Sure I can: Griswold, Eisenstadt, Roe and Planned Parenthood v. Casey all upheld the right to make decisions as to whether or not one will attempt to “bear or beget a child”. I think, though, that you meant to challenge me to find precedent upholding the right to attempt to procreate a child with someone of the same sex. However, since the rulings (except Griswold) were made on the basis of individual reproductive choice, there is absolutely nothing about them to indicate that gay men and lesbians lack those rights; none of the language used in any of the court decisions in any way says that individuals may only pursue procreation through heterosexual intercourse.

    At that point, it just is a public policy decision, like whether to build a bridge to nowhere or not. Insisting on a right to reproduce with someone of the other sex is foolish and churlish, it would have so many bad effects and so few good ones.

    (again, I’m pretty sure you meant “someone of the same sex”; I’ll respond based on that assumption, but feel free to correct me if I’m wrong)

    If it is found that the right to reproduce does not extend to the right to pursue reproduction through technological means, then you are correct that it would be a matter of public policy. Preventing the use of artificial reproduction, though, still has no impact on the discussion at hand unless you can establish that marriage is the arbiter of procreation rights (and we’ve already established that it isn’t). And you still have not made the argument that same sex couples should be prohibited from seeking such artificial means as are available to opposite sex couples.

    I can’t think of one good one. Can you?

    It would create a biological link between each of the parents (same sex or opposite sex) and their children. As to bad results: any unwanted or objectionable results would likely be similar to those associated with IVF, so I would tend to think that whatever restrictions are appropriate to impose on IVF would probably — potentially with some restrictions on gamete modification success rates — be sufficient for any attempts to produce an offspring from two members of the same sex.

  140. bman
    September 1st, 2011 at 23:58 | #140

    <

    Patrick Hogan: ….promoting morality — the state-cited reason for the laws struck down by Lawrence — is an insufficient rational basis for laws criminalizing consensual sex between adults.

    Lawrence was about “private” sexual conduct.

    Adultery is different because it harms a vital public institution, marriage.

    Once a couple enters marriage they have freely and willingly entered a public institution that obligates them to sexual fidelity. They have, in essence, relinquished the right to have private sex with others, or to have it viewed as simply a private matter.

    Since adultery harms the public institution of marriage the state has at least a rational interest to prevent it from proliferating, and possibly even a compelling interest.

    Nor has there ever been a fundamental right to adultery, and its unlikely any court would dare say there is such. One court said, for example,

    “To hold that public morality can never serve as a rational basis for legislation after Lawrence would cause a massive disruption of the social order, one this court is not willing to set into motion.”
    (from http://www.ca11.uscourts.gov/opinions/ops/200611892.pdf)

    Supposing, then, that adultery is not a fundamental right, and that it harms the public institution of marriage, rational basis review would be proper standard of review for the courts to use. And, typically, the state can defend itself when that standard is used.

    Your appeal to Lawrence is based on the presumption that adultery can not be distinguished from the private sexual conduct described in Lawrence.

    Since adultery can be distinguished from the private scope in Lawrence, Lawrence would not apply.

    For an excellent discussion on the state of public morality at law after Lawrence see
    Morals Legislation Since Lawrence
    V. TEXAS
    in addition to the court case link a few lines above.

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